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T/W 


The  Law  of  the  Farm. 


;i¥  923/5 


T  II E 


LAW  OF  THE  FAEM; 


A     TEEATISE 


LEADING  TITLES  OF  THE  LAW 


INVOLVED    IN 


Farming  Business  and  Litigation. 


BV 

A.    W.     THOMPSON. 

1. 1 

Attorney  ancT  Counselor  at  Law. 


SAN   FRANCISCO: 
SUMNER     WHITNEY     &     CO. 

1876. 


Copyright  1876, 
By    a.     W.     THOMPSON. 


r 


TO    MY    BRETHREN, 


The  Lawyers  of  the  Agriciiltural  Districts, 


The  Patrons  of  Husbandry, 


Tbi3  volume  is  respectfully  dedicated,  with  the  hope  that  it  may  prove 
convenient  and  useful  to  them  all. 


?5G0r8 


PEEFACE 


The  writer,  for  fifteen  years,  superintended  his  farm  and  also 
practiced  law,  having  his  office  in  a  neighboring  town.  For 
something  more  than  two  years  he  has  acted  as  the  attorney  of 
the  several  "  Grange  "  corporations  at  San  Francisco,  and  has 
been  so  situated  as  to  become  aware  that  there  exists  considera- 
ble demand  for  a  book  adapted  to  the  wants  of  farmers,  country 
lawyers,  justices,  and  factors  of  country  produce,  giving,  tersely, 
the  law  applicable  to  farming,  and  its  kindred  jnirsuits  of  dairy- 
ing and  stock-raising.  This  demand  the  author  has  attempted  to 
meet  by  the  preparation  of  this  book,  hoping  that  his  lack  of 
ability  to  do  justice  to  the  subject  may  be  in  some  measure 
obviated  by  the  amount  of  labor  which  he  has  put  into  the  work, 
and  by  which  he  has,  as  he  believes,  been  able  to  present  all  that 
apj)ears  In  the  statutes,  reports,  and  text-books  which  belongs 
in  a  treatise  under  the  distinctive  title  of  "  The  Law  of  the 
Farm." 

A.  W.  THOMPSON. 

November,  1876. 


TABLE  OF  CONTENTS. 


Part  I. 
AGRICULTURE. 


CHAFPER  I. 

LAWS   FOR   THE  ENCOURAGEMENT  OF   AGRICULTUHE. 

§  1.  The  value  of  agriculture  to  the  body  politic. 

§  2.  The  Department  of  Agriculture.  ' 

§  3.  Agricultxiral  colleges. 

§  4.  Expenses  of  agricultural  colleges  to  be  paid  by  the  States. 

§  5.  Special  provisions  by  acts  of  Congress  as  to  agricultural  colleges. 


CHAPTER  II. 

AGRICULTURAL  SOCIETIES. 

§    6.  The  United  States  Agricultural  Society. 

§    7.  Statutes  concerning  agricultural  societies. 

§    8.  Agricultural  societies  in  certain  States. 

§    9.  State  laws  as  to  agricultural  societies. 

§  10.  Statutes  affecting  agricultural  societies. 

§  11.  Statutes  in  certain  States  concerning  agricultural  societies. 

§  12.  Summary  of  legislation  for  agricultural  societies. 

§  13.  Police  powers  by  agricultural  societies. 

§  14.  General  laws  as  to  corporations  affecting  agricultural  societies. 


X  TABLE    OF    CONTENTS. 

CHAPTER   ni. 

CROPS. 

§  15.  Growing  crops  the  subject  of  contracts. 

§  16.  Status  of  growing  crops  on  sale  of  land. 

§  17.  Reservation  of  growing  crops  on  sale  of  laud. 

§  18.  "When  reservation  of  crop  should  be  in  writing. 

§  19.  Query  as  to  necessity  of  written  reservation  of  crop. 

§  20.  Value  of  rule  that  reservation  of  crop  must  be  in  writing. 

§  21.  As  to  growing  crop  when  land  is  mortgaged. 

§  22.  Eights  of  tenant  as  to  crops  on  mortgaged  lands. 

§  23.  What  protection  tenant  can  have  as  to  his  crop  against  mortgagee. 

§  24.  Levy  of  execution  on  growing  crops. 

§  25.  Distinction  between //'wc^h.s  naturales  ami  fructus  industriales. 

§  2G.  Exemption  of  growing  crops  from  seizure. 

§  27.  Construction  of  statutes  exempting  growing  crops. 

§  28.  Waiver  of  exemption  of  growing  crops  from  seizure. 

§  29.  Chattel  mortgages  on  growing  crops. 

§  30.  Disposal  of  crops  before  they  are  raised. 

§  31.  When  anticipated  crops  may  be  mortgaged. 

§  32.  Notice  of  chattel  mortgage  on  crops. 

§  33.  Relation  of  homestead  exemption  to  growing  crops. 

§  34.  Statute  of  Frauds  as  to  growing  crops. 

§  35.  Ownersliip  of  crop  dependent  upon  title  to  land 

§  36.  General  jiropositions  as  to  disposal  of  crops. 

§  37.  Prima,  vestura  and  annual  crops. 


CHAPTER    IV. 

FERTIIilZERS. 

§  38.  General  rules  as  to  fertilizers. 

§  39.  Special  statutes  as  to  fertilizers. 

§  40.  State  laws  concerning  fertilizers. 

§  41.  Ownersliip  of  manure  made  on  a  farm. 

§  42.  English  rule  as  to  manure  on  a  farm. 

§  43.  Rule  in  America  as  to  ownership  of  manure. 

§  44.  Title  to  manure,  as  between  executor  and  heir. 

§  45.  Title  to  manure  on  sale  of  farm. 

§  46.  Title  to  manure,  as  between  landlord  and  tenant. 

§  47.  Usage  as  to  ownershii)  of  manure'. 

§  48.  Exceptions  to  general  rules  as  to  ownersliip  of  manure. 

§  49.  The  riglit  to  collect  sea-weed  for  manure. 


TABLE    OF    CONTENTS.  XI 


Part  TI. 
DAMAGE  S 


CHAPTER  V. 

INJURY  BY  FIRE. 

§  50.  General  rule  as  to  damage  by  lire. 

§  51.  No  redress  for  damage  by  unavoidable  accident. 

§  52.  Common-law  rule  as  to  damage  by  fire. 

§  53.  One  may  burn  stubble,  when. 

§  54.  One  may  burn  rubbish  or  wood  on  his  land. 

§  55.  As  to  burden  of  proof  of  negligence  in  case  of  fire.  • 

§  56.  Proximate  damages  alone  recoverable. 

§  57.  Statutes  as  to  damage  by  fire. 

§  58.  State  laws  as  to  injury  by  fire. 

§  59.  A  trespasser  responsible  for  damage  by  fire. 

§  60.  Liability  of  hunters  or  travelers  for  damage  by  fire. 

§  61.  Damage  by  fire  from  steam-thresher. 

§  62.  Negligence  in  use  of  steam-thresher. 

§  63.  Duty  of  proprietor  of  steam-thresher  to  use  appliances  to  prevent  escapa 

of  sparks. 

§  64.  Owner  of  steam-thresher  not  an  insurer. 

§  65.  Fires  caused  by  locomotives,  common-law  rule. 

§  66.  Rule  in  America  as  to  fires  by  sparks  from  locomotives. 

§  67.  Statute  as  to  fires  from  locomotives. 

§  68.  State  laws  as  to  fires  from  locomotives  in  America. 

§  69.  Value  of  common-law  rule  as  to  fires  from  locomotives. 

§  70.  Burden  of  proof  of  negligence  when  fire  occurs  from  locomotive. 

§  71.  Duty  of  railroad  corporation  to  guard  against  fire. 

§  72.  Care  required  to  jirevent  escape  of  fire  from  locomotive. 

§  73.  Duty  of  railroad  comjiany  to  extinguish  fires  caused  by  locomotives. 

§  74.  Proximate  and  remote  damage  by  fire  from  locomotive. 

§  75.  Liability  of  railroad  companies  for  damage  by  spread  of  fire. 

§  76.  Duty  of  farmer  to  guard  his  crops  against  fire  from  locomotive. 

§  77.  Farmers  not  bound  to  guard  against  fire. 


mi  TABLE    OF    CONTENTS. 

CHAPTER   VI. 

DAMAGE  TO   LIVE-STOCK  BY  EAILROAJ)  CARS   OR  ENGINES. 

§  78.  Liability  of  railway  for  injury  to  animals. 

§  79.  Contributory  negligence  by  o\vner  of  animals. 

§  80.  The  owner  of  animals  must  take  due  care  of  them. 

§  81.  Damage  by  locomotives  to  animals  running  at  large. 

§  82.  Collision  with  live-stock  where  the  railway  company  has  right  of  way. 

§  83.  Contract  to  fence  by  railroad  company  with  land-owner. 

§  84.  Responsibility  of  railroad  companies  to  the  public. 

§  85.  Burden  of  proof  of  negligence  when  animals  are  injured  by  locomotives. 

§  86.  First  duty  of  railway  companies  to  guard  their  trains. 

§  87.  Railway  companies  may  regulate  speed  of  trains. 

§  88.  Laws  as  to  collision  with  animals  are  not  for  the  benefit  alone  of  the 

owner  of  live-stock. 

§  89.  The  duty  of  railway  companies  as  to  gates  and  other  openings  in  fences. 

§  90.  Reasonable  diligence  only  required  in  keeping  gates  closed. 


Part  III. 
ANIMALS 


§ 

91. 

§ 

92. 

§ 

93. 

§ 

94. 

§ 

95. 

§ 

96. 

5 

97. 

§ 

98. 

§ 

99. 

§ 

100. 

§ 

101. 

§ 

102. 

CHAPTER  VH. 

HIRE  OF  ANIIMALS. 

Contract  of  hire  of  animals. 

Special  covenants  by  the  lettor  of  animals. 

Warranty  of  title  implied  by  letting  animals. 

The  hirer  of  animals  must  feed  and  care  for  them. 

Extraordinary  expenses  incurred  in  care  of  hired  animals. 

AVhen  hired  animals  arc  stolen,  loss  falls  on  owner. 

Negligence  sutticient  to  charge  hirer  for  loss  of  animals. 

Hirer  of  animals  liable  for  loss  from  servants'  negligence. 

Hirer  of  animals  lias  a  special  property  in  them. 

If  the  hirer  of  animals  abuse  them. 

Distinction  between  hirer  and  borrower  of  animals. 

Borrower  of  animals  restricted  to  stipulated  use  of  them. 


TABLE    OF    CONTENTS.  XMl 

CHAPTER  VUI. 

SALE  OF  ANIMALS. 

§  103.  General  rules  in  .sales  of  animals. 

§  104.  Sales  made  by  minors. 

§  105.  Sales  made  by  married  women. 

§  106.  Sales  made  by  insane  persons  and  idiots. 

§  107.  Contracts  made  by  drunkards. 

§  108.  Mutual  assent  of  parties  to  a  sale. 

§  109.  Taking  animals  on  trial. 

§  110.  Fraud  vitiates  all  contracts. 

§  111.  Misrepresentations  of  material  facts  destroy  the  contract. 

§  112.  Concealment  of  material  facts. 

§  113.  Statute  of  Frauds  in  sale  of  animals. 

§  114.  Mistakes  as  to  material  facts  in  sale  of  animals 

§  115.  Let  the  buyer  beware. 

CHAPTER  IX. 

WARRANTY  ON  SALE  OF  ANIMALS. 

§  116.  Contract  of  warranty  in  sale  of  animals. 

§  117.  "Warranty  of  title  by  sale  of  animals. 

§  118.  "Warranty  may  be  made  any  time  before  sale. 

§  119.  Express  warranty. 

§  120.  "Warranty  to  be  made  good  in  letter  and  spirit. 

§  121.  Visible  defects  not  covered  by  warranty. 

§  122.  "Words  of  description,  when  a  warranty. 

§  123.  Expression  of  opinion,  when  a  Avarranty. 

§  124.  Implied  warranty. 

§  125.  "Warranty  of  merchantable  character  of  article  sold. 

§  126.  "Warranty  against  latent  defects. 

§  127.  "Warranty  in  sales  by  sample  or  specimen. 

§  128.  Implied  warranty  in  cases  of  fraud. 

§  129.  Measure  of  damages  on  breach  of  warranty. 

CHAPTER  X. 

"WARRANTY    OF    SOUNDNESS    OF  ANIMALS. 

§  130.  "What  constitutes  soundness  and  unsoundness. 

§  131.  Meaning  of  the  word  "  sound,"  in  warranty  of  horses. 

§  132.  The  measure  of  unsoundness. 

§  133.  Diseases  which  do  or  do  not  constitute  unsoundness. 


Xl\  TABLE    OF    CONTENTS. 

CHAPTER  XI. 

THE  LAW   AS  TO  HORSES. 

§  134.  Legal  ethics  as  to  horses. 

§  135.  Horse-breakers  and  trainers,  their  duties  and  rights. 

§  136.  Care  and  skill  required  of  horse-breaker  or  trainer. 

§  137.  Lien  of  horse-breakers  and  trainers. 

§  138.  Lien  of  "stander"  of  stallions. 

§  139.  Veterinary  surgeons,  their  duties  and  rights. 

§  140.  Malpractice  by  veterinary  surgeons. 

§  141.  The  veterinary  surgeon  has  a  lien. 

§  142.  Farriers,  their  rights  and  liabilities. 

§  143.  Lien  of  a  farrier. 

CHAPTER  Xn. 

CATTLE. 

§  144.  Special  laws  for  protection  of  cattle  from  disease. 

§  145.  Effect  of  statutes  for  protection  of  cattle  from  contagion. 

§  146.  Sale  of  cattle  affected  by  contagious  disease. 

§  147.  Laws  to  prevent  importation  of  diseased  cattle. 

§  148.  Marks  and  brands. 

§  149.  Drovers  of  cattle,  their  rights  and  duties. 

§  150.  Bight  to  graze  cattle  on  open  commons. 

CHAPTER  XIH. 

LAWS   RELATING    TO    SHEEP. 

§  151.  Laws  for  protection  of  sheep  from  dogs. 

§  152.  Measure  of  damage  done  to  sheep  by  dogs. 

§  153.  Ignorance  of  vicious  habits  of  dogs  no  defense. 

§  154.  Liability  of  owners  where  several  dogs  attack  sheep. 

§  155.  Soundness  of  slieep — Infectious  diseases. 

§  156.  Protection  of  sheep  from  infectious  diseases. 

§  157.  Duty  of  shepherd  and  agistor  of  sheep. 

§  158.  Sheep  taken  on  shares. 

§  159.  Rights  of  owner  and  bailee  of  sheep. 

§  160.  Wool,  peculiar  duties  of  vendor  of. 

CHAPTER  XIV. 

HOGS. 

§  161.    Caveat  emptor,  in  sale  of  bogs. 

§  102.     Pjamest-money  in  purchase  of  hogs. 


TABLE   OF    CONTENTS.  XV 


§  16s.  Sale  of  swino  affected  by  contagious  disease. 

§  164.  Words  of  commendation  not  a  warranty. 

§  165.  Distinction  between  "hog"  and  "pork." 

§  166.  The  business  of  preparing  pork  for  market. 

§  167.  As  to  damage  by  hogs  in  trespassing. 

§  168.  Killing  hogs  found  "damage  feasant." 


CHAPTER   XV. 

DOGS. 

§  169.  Property  in  dogs  differs  from  that  of  other  animals. 

§  170.  The  law  will  protect  owners  of  dogs  in  their  property. 

§  171.  Police  power  to  regulate  keeping  of  dogs. 

§  172.  Sheep-killing  dogs. 

§  173.  The  law  of  a  dog-fight. 

§  174.  A  person  may  kill  a  dog  assaulting  him. 


CHAPTER   XVI. 

DANGEROUS  ANIMALS. 

§  175.  Scienter,  common-law  rule  as  to. 

§  176.  Owner  liable  for  damage  by  vicious  animal. 

§  177.  Negligence  in  guarding  dangerous  animal. 

§  178.  Harborer  of  dangerous  animal,  liability  of. 

§  179.  Liability  ceases  when  vicious  animal  is  stolen. 

§  180.  On  sale  of  dangerous  animal,  notice  must  be  given. 

§  181.  Joint  o%vners  of  dangerous  animal,  their  liability. 

§  182.  Measure  of  damages  for  injuries  by  vicious  animals. 

§  183.  The  right  to  kepe  animals  which  are  dangerovis. 


CHAPTER  XVn. 

PASTUKAGE  OF  ANIMALS. 

§  184.  General  rules  of  bailment  applicable  to  agistors. 

§  185.  Agistors  not  insurers. 

§  186.  Implied  covenants  on  part  of  agistors. 

§  187.  Negligence  of  agistors,  bvirden  of  proof. 

§  188.  Agistor' s  liability  for  trespass  by  animals. 

§  189.  Agistors  have  no  lien  at  common  law. 

§  190.  Agistors  have  no  lien  as  bailees  for  hire. 

§  191.  Agistors  have  possessory  interest  in  animals. 

§  192.  Agistor's  powers  when  animals  are  injured  or  stolen. 


XVI  TABLE    OF    CONTENTS.  • 

CHAPTER   XVIII. 

MALICIOUS  INJURY  TO  ANIMALS. 

§  193.  Malicious  miscliief  as  a  comiuou-law  offense. 

§  194.  Malicious  mischief  in  the  United  States. 

§  195.  Actual  malice,  against  the  owner,  must  appear. 

§  190.  Criminal  statutes  as  to  injury  of  domestic  animals. 

§  197.  State  laws  as  to  malicious  injury  of  animals. 

§  198.  Laws  in  Georgia  as  to  uaalicious  injury  of  animals. 

§  199.  Statutes  concerning  malicious  injury  of  animals. 

§  200.  State  laws  as  to  damage  to  domestic  animals. 

§  201.  Malicious  injuiy  of  animals,  criminal  laws. 

§  202.  Laws  of  several  States  as  to  injury  of  domestic  animals. 

§  203.  Criminal  law  as  to  malicious  injury  of  animals. 

§  204.  Statutes  as  to  malicious  injuries  to  animals. 

§  205.  Construction  (jf  statutes  for  prevention  of  willful  injuiy  to  domestic 

animals. 

§  206.  The  definition  of  malice. 

§  207.  As  to  what  constitutes  "injury  to  animals." 

CHAPTER  XIX. 

FENCES. 

§  208.  The  use  of  fences  to  protect  crops. 

§209.  Common-law  rule:  he  who  keeps  cattle  must  fence. 

§  210.  The  value  of  this  rule  in  the  United  States. 

§  211.  In  some  of  the  States  this  rule  never  obtained. 

§  212.  The  common  law,  how  far  adopted  in  America. 

§  213.  No  general  rule  as  to  fencing  in  the  United  States. 

§  214.  Statutes  of  several  of  the  States  as  to  fencing. 

§  215.  State  laws  as  to  fencing  against  stock. 

§  210.  Prescription  to  fence  at  common  law. 


CHAPTER  XX. 

LAWFUL  FENCES. 

§  217.  States  may  i)rescril>e  wliat  shall  be  lawful  fences. 

§  218.  Statute  laws  control  as  to  partition  fences. 

§  219.  General  cliaracteristics  of  fence  laws. 

§  220.  State  laws  as  to  wliat  shall  be  lawful  fence.s. 

§  221.  Fence  laws  in  certain  States. 

§  222.  State  laws  as  to  lawful  fences. 

§  223.  Lawful  fiances  in  certain  States. 

§  224.  Rivera  may  be  lawful  fences." 


TABLE    OF    CONTENTS. 

§  225.  Fences  which  are  as  efficient  as  lawful  fences. 

§  220.  Obligation  of  coterminous  iwoprietor  as  to  fencing. 

§  227.  Owner  of  uninclosed  lands  need  not  join  in  fencing. 

§  228.  Division  fence  on  either  side  of  water-course. 

§  229.  Fence-viewers  and  their  duties. 

§  230.  Mode  of  acquiring  jurisdiction  by  fence-viewers. 

§  231.  Award  of  fence-viewers  a  lien  on  land. 

§  232.  Fence-viewers  to  assess  damages  done  by  animals. 


CHAPTER  XXI. 

RAILROAD    FENCES. 

§  233.  Duty  of  railroad  comjiany  to  fence. 

§  234.  Damage  by  engines  running  into  animals. 

§  235.  General  rules  as  to  obligation  to  fence  by  railroad  companies. 

§  236.  State  laws  as  to  fencing  by  railroad  companies. 

§  237.  Liability  of  railway  comiJanies,  rulings  of  State  Courts. 

§  238.  Application  of  fence  laws  to  railway  companies. 

§  239.  Construction  of  fence  laws  as  to  railroads. 

§  240.  Laws  to  compel  railroad  companies  to  fence. 

§  241.  Damage  to  live-stock  by  locomotives. 


CHAPTER  XXII. 

POUND  LAWS  AND  ESTRAYS. 

§  242.  Right  to  distrain  animals  damage  feasant. 

§  243.  The  common-law  rule  as  to  animals  found  doing  damage. 

§  244.  Pound  laws  in  the  L^nited  States. 

§  245.  The  constitiationality  of  pound  laws. 

§  246.  Proceedings  under  pound'  laws,  actions  in  rem. 

§  247.  Pound  laws  must  be  strictly  followed. 

§  248,  Title  acquired  at  a  pound  sale. 

Farm — 6. 


xviii  TABLE    OF    CONTENTS. 


Part  IV. 
PEESONAL  RELATIONS. 


CHAPTER   XXIII. 

MASTER  AND  SERVANT. 

§  249.  The  relation  of  master  and  servant. 

§  250.  The  master  should  guard  against  personal  injury  of  servant. 

§  251.  The  master  no  insiu-er  of  servant's  life  or  health. 

§  252.  The  master  may  regulate  hours  of  labor. 

§  253.  Servant  must  obtain  master's  leave  to  absent  himself. 

§  254.  Servant  bound  for  term  of  service  agreed  upon. 

§  255.  Sickness  or  inability  of  servant  terminates  engagement. 

§  25C.  By  misconduct,  servant  warrants  his  discharge  without  pay. 

§  257.  Misconduct,  to  warrant  discharge  without  pay,  must  be  serious. 

§  258.  Master  must  pay  for  term  agreed  upon,  when. 

§  259.  The  contract  for  j)ayment  of  wages. 

§  260.  If  the  servant  fall  sick  or  become  disabled. 

§  261.  The  master  has  a  charge  of  the  servant's  health. 

§  262.  Master  not  bound  to  give  a  "  character." 

§  263.  Damages  for  enticing  away  servant. 

§  264.  Liability  of  master  on  contracts  by  servant. 

§  265.  The  master's  liability  for  injuries  by  servant. 

§  266.  The  master's  responsibility  ends,  when. 

§  267.  Servant  shoidd  reimburse  master  for  losses. 


CHAPTER  XXIV. 

FACTORS  AND  BROKERS. 

§  "ifiS.  A  factor  differs  from  a  broker. 

§  269.  Sold'note  and  Ijouglit  note. 

§  270.  Tlie  broker  agent  for  the  seller. 

§  271.  Real  estate  brokers — when  their  commissions  are  duo. 

§  272.  Implied  warranty  of  title,  vendor  to  Virokcr. 

§  273.  Factors,  tlieir  duties  and  powers. 

§  274.  The  factor  lias  lien  on  goods  consigned  to  him. 


TABLE    OF    CONTENTS.  XIX 

5  275.  Foreign  factors  generally  treated  as  principals. 

§  276.  A  factor  "  del  credere." 

§  277.  Presumptions  of  knowledge  of  consignor  as  to  usages  of  trade. 

§  278.  When  and  to  what  extent  factor  may  pledge  goods. 

§  279.  Factor  cannot  iiledge  goods  for  his  debts. 

§  280.  Innocent  pledgee  of  factor  not  i^rotected. 

§  281.  Consignor  may  recover  of  pledgee  value  of  goods. 

§  282.  Ignorance  that  goods  were  consigned,  no  defense  to  pledgee. 

§  283.  Consigned  goods  not  liable  for  factor's  debts. 

§  284.  Factor  must  obey  consignee's  orders. 

§  285.  Purchase  by  factor  of  goods  consigned  to  him. 

§  286.  Factor  not  an  insurer. 

§  287.  Objections  to  employment  of  "middle-men." 

§  288.  Farmer  may  sell  produce  without  license. 


CHAPTER  XXV. 

CARRIERS. 

§  289.  Common  carrier  an  insurer,  to  what  extent. 

§  290.  Common  carrier  not  an  insurer,  when. 

§  291.  Common  carriers  not  insurers  of  live-stock. 

§  292.  Right  of  carriers  to  limit  responsibility. 

§  293.  Limitation  of  carrier's  responsibility  by  special  contract. 

§  294.  The  carrier  has  a  lien. 

§  295.  Common  carrier  must  show  no  partiality. 


CHAPTER  XXVI. 

LANDLORD  AJSTD  TENANT. 

§  296.  Covenant  for  quiet  enjoyment. 

§  297.  Covenant  against  incumbrances. 

§  298.  Obligation  to  pay  taxes. 

§  299.  Common-law  rule  as  to  repairs. 

§  300.  Distinction  in  farming  leases  as  to  repairs. 

§  301.  Tenant's  right  to  make  alterations. 

§  302.  Distress  for  rent. 

§  303.  Landlord's  title  may  not  be  disputed  by  tenant. 

§  304.  Lease  may  be  attacked  by  tenant  for  fraud. 

§  305.  As  to  waste,  in  farming  leases. 

§  306.  Right  of  tenant  to  cut  trees  for  fuel. 

§  307.  Tenant's  duty  to  preserve  property. 

§  308.  Tenant's  right  to  remove  fixtures. 

§  309.  Distinction,  as  to  removal  of  fixtures,  against  agricultural  tenants. 


XX  TABLE    OF    CONTENTS. 

\  CHAPTER   XXVIL 

PARENT  AND  CHILD. 

§  310.  Duty  of  the  father  to  support  his  child. 

§  311.  The  father  must  educate  his  children. 

§  312.  The  contracts  of  infants  arc  voidable,  not  void. 

§  313.  The  parent's  right  to  earnings  of  his  child. 

§  314.  The  father  may  emancipate  his  child. 

§  315.  Parent  responsible  for  child's  torts,  when. 

§  316.  Right  of  recovery  for  injury  to  child. 

§  317.  Duties  of  the  child  to  its  parent. 

§  318.  Transactions,  between  parent  and  cliild,  as  to  stranger.s 

CHAPTER  XXVHI. 

GUARDIAN   AND   \\'A11D. 

§  319.  The  relation  of  guardian  and  ward. 

§  320.  General  duty  of  guardian. 

§  321.  Jurisdiction  of  Courts  of  Chancery. 

§  322.  The  guardian  r(;preseuts  the  Court,  wheu. 

§  ;323.  The  guardian  must  take  no  chances  with  ward's  property. 

§  324.  Neglect,  by  guardian,  to  invest  trust  funds. 


CHAPTER  XXIX. 

APPRENTICE  AND  MASTEIi. 

§  325.  The  relation  of  master  and  apprentice. 

§  326.  The  father's  power  to  bind  his  son  apprentice. 

§  327.  Statutory  provisions  as  to  master  and  apprentice. 

§  328.  Who  may  assent  to  binding  out  a  child. 

§  329.  The  contract  of  apprenticeship. 

§  :i30.  Persuading  apprentice  to  leave  his  master. 


CHAPTER  XXX. 

RAISING  CROPS  ON   SHARES. 

§  'Ml.  Distinction  between  leasing  land  and  farming  on  sljares. 

§  .'i32.  Parties  to  cropping  contract,  tenants  in  common. 

§  :i33.  The  cropper  on  shares  not  a  lab(jrer  for  liire. 

§  334.  Possession  of  growing  crop  under  Imsbandry  contract. 


TABLE   OF    CONTENTS.  XXI 

§  335.  The  "cropper"  must  farm  in  a  "husbandlike"  manner. 

§  336.  As  to  what  is  "  proper  husbandry." 

§  337.  When  "  cropping  "  contract  becomes  an  ordinary  tenancy. 

§  338.  Agreement  to  pay  with  part  of  crop  makes  a  tenancy. 

§  3.39.  Intention  of  parties  characterizes  the  contract. 

§  .'>40.  Cropping  on  shares  a  partnership,  when. 


CHAPTER   XXXI. 

DAIRY  CONTRACTS. 

§  .341.  Peculiar  characteristics  of  dairy  contracts. 

§  .342.  Owner  may  retain  partial  control  of  property. 

§  343.  O^vTier  may  retain  control  sufficient  to  guard  his  interest. 

§  344.  The  owTier  may  dictate  as  to  breeding  cows. 

§  345.  Covenant  to  raise  calves. 

§  346.  Lease  of  real  and  personal  property  by  same  contract. 

§  347.  Landlord's  loss  of  rent  by  interference  with  leased  property. 

§  348.  Possession  of  real  and  personal  property  under  dairy  contract. 

§  349.  Right  to  "  increase  "  from  cows  under  dairy  contract. 

§  350.  Duty  of  tenant  under  dairy  contract. 

§  351.  For  loss  by  theft,  hirer  of  animals  not  responsible. 

§  .352.  Cattle  must  be  kept  on  the  land  designated. 


Part   V. 
EEAL   ESTATE. 


CHAPTER  XXXn. 

GENERAL  PRINCIPLES  OF  THE  LAW  AS  TO  REAL  PROPERTY. 

§  353.  The  law  of  real  property. 

§  354.  Real  property  is  corporeal  or  incorporeal. 

§  355.  A  fee-simple. 

§  .356.  Estates  tail. 

§  357.  An  estate  for  life. 

§  358.  An  estate  by  curtesy. 

§  359.  Dower. 


TABLE    OF    CONTENTS. 


§  360.  Estate  for  years. 

§  361.  An  estate  at  will. 

§  362.  Joint  tenancy. 

§  :]63.  Tenancy  in  common. 


CHAPTER  XXXIII. 

BIGHT  OF  WAY. 

§  364.  Easements  and  servitudes. 

§  365.  General  characteristics  of  easements. 

§  3WJ.  Easements  may  be  either  positive  or  negative. 

§  367.  Eight  of  land-owner  in  soil  of  road. 

§  368.  Ways  are  appendant  or  appurtenant,  when. 

§  369.  A  right  of  way  may  be  in  gross. 

§  370.  A  way  of  necessity. 

§  371.  Presumptions  as  to  way  of  necessity. 

§  372.  Meaning  of  the  words  "  a  way  of  necessity." 

§  373.  A  way  by  grant. 

§  374.  Implied  grant  of  way  when  land  is  sold. 

§  375.  What  use  of  land  implied  by  grant  of  way. 

§  376.  Repairs  of  road  over  another's  land. 

§  377.  A  way  by  prescription  or  user. 

§  378.  Statute  of  Limitations  the  measure  of  time  of  user. 


CHAPTER  XXXIV. 

RIPARIAN  RIGHTS. 

§  379.  Lands  bounded  by  navigable  waters. 

§  380.  Lands  boimded  on  streams  not  navigable. 

§  381.  Ownersliip  of  water  in  a  stream. 

§  ;i82.  Right  of  detention  of  water  of  a  running  stream. 

§  383.  Rights  of  o'mier  of  land  tlirough  which  a  stream  runs. 

§  384.  General  rules  as  to  rights  of  riparian  projirietors. 

§  385.  No  absolute  ownership  of  water.  ^ 

§  386.  Each  riparian  j)roprietor  has  a  right  to  use  the  water. 

§  387.  Water  may  be  used  for  natural  purposes. 

§  388.  Right  to  use  water  for  irrigation. 

§  389.  Reasonable  consumption  of  water  depends  on  circumstances. 

§  390.  Right  of  proprietor  to  have  water  unpolluted. 

§  391.  Accretion  on  land  created  by  alluvium. 

§  392.  Islanil  situated  in  a  river. 

§  393.  Ownership)  of  water-power  of  a  stream. 

§  394.  Mill  privilege. 


TABLE    OF    CONTENTS. 

CHAPTER    XXXV. 

ROADS   .VND  HIGHAVAVS. 

§  395.  Public  roads,  rights  of  publif  and  of  land-o^vner. 

§  396.  Title  to  land  in  roadway. 

§  397.  Estate  retained  in  roadway  by  owuor  of  land. 

§  398.  Bights  of  public  in  a  highway. 

§  399.  Eight  of  public  to  soil  and  timber  in  highway. 

§  400.  The  public  has  no  right  of  pasturage  in  highway. 

§  401.  Eights  of  drovers  upon  public  roads. 

§  402.  Public  right  of  way,  how  obtained. 

§  403.  Eminent  domain. 

§  404.  Dedication  of  private  property  to  public  use. 

§  405.  Private  roads. 

§  40f).  Legislation  as  to  private  road.s. 


Part  I. 


AGEICITLTITEE. 


Farm— 1.  |  1  ] 


EXCOURAGEMENT   OP    AGRICULTURE.  §  1-2 


CHAPTER  I. 

LAWS  FOR  THE  EXCOURAGEIVIENT  OF   AGBICULTUBE. 

§  1.  The  value  of  agriculture  to  the  body  politic, 

§  2.  The  Department  of  Agriculture. 

§  3.  Agricultural  colleges. 

§  4.  Expenses  of  agricultural  colleges  to  he  paid  hy  the  States. 

§  5.  Special  provisions  by  acts  of  Congress  as  to  agricultural  colleges. 

§  1.   The  value  of  agriculture  to  the  body  politic  has 

b^'en  generally  recognized,  and,  from  an  early  date  in  the  history 
ol  national  and  State  legislation,  the  propriety  of  fostering  it 
by  special  statutes  admitted. 

As  early  as  1817  an  a,ct  was  passed  by  Congress,  offering  re- 
wards and  granting  privileges  to  a  colony  of  French  emigrants, 
skilled  in  the  culture  of  vines  and  olive  trees,  to  induce  them  to 
establish  that  branch  of  industry  in  the  United  States,^  and 
from  that  time  forward  much  attention  has  been  given  to  this 
class  of  legislation,  the  result  of  Avhich  has  been  that  laws  for 
the  encouragement  of  agriculture  form  a  leading  characteristic 
of  the  statutes  of  the  nation  and  the  several  States. 

§  2.  The  department  of  agriculture,  in  the  Government 
of  the  United  States,  was  by  act  of  Congress  established  at  the 
national  capital.  May  15th,  1862,  the  duties  for  the  j)erformance 
of  which  the  department  was  created,  being  to  acquire,  and  dif- 
fuse among  the  people  of  the  United  States  information  upon 
subjects  connected  with  agriculture,  and  to  procure,  propagate, 
and  distribute  to  residents  in  the  several  States  and  Territories 
new  and  valuable  seeds,  plants,  and  trees.^  A  commissioner  of 
a""riculture  is  made  the  head  of  this  department,  and  under  him 
are  employed  skilled  botanists,  gardeners,  entomologists,  and 
other  persons  learned  in  the  natural  sciences,  and  by  their  co- 

1  U.  S.  Stats,  at  Large,  Vol.  3,  p.  374.  ^  ji^ia,  Vol.  12,  p.  387. 


§  3  EXCOtTlAGEMENT  OF   AGRICULTURE.  4 

operation  the  commissioner  collates  all  available  information,  by 
statistics,  experiments,  and  culture,  and  also  collects  new  and 
valuable  seeds,  plants,  and  trees,  for  gratuitous  distribution  to 
such  pei'sons  as,  by  culture  and  experimental  farming,  will  dem- 
onstrate their  value,  and  where  found  to  be  desirable  acquisitions 
to  the  agricultural  or  pomological  wealth  of  our  country,  will 
economise  seed,  cuttings,  or  grafts,  so  as  to  bring  the  several 
plants  or  trees  into  general  culture.  The  results  of  these  labors, 
the  information  obtained,  is  given  to  Congress  by  annual  reports ; 
and  specimens  of  the  seeds,  plants,  and  trees,  obtained  or  raised, 
are  sent  to  residents  in  the  various  States  who  are  engaged  in  pur- 
suits of  such  a  character  as  to  be  interested  in  the  improvement 
of  agricultural  and  ])omological  products. 

The  public  appreciation  of  the  importance  of  the  labors  in- 
trusted to  and  the  value  of  results  obtained  by  this  department 
has  been  such  that  liberal  annual  appropriations  of  money  have 
been  made  for  its  support,  and  this  branch  of  the  General  Gov- 
ernment has  become  very  efficient  and  of  great  public  utility.^ 

§  3.  Agricultural  colleges.— -Special  provision  for  the  estab- 
lishment and  maintenance  of  colleg-es,  in  which  agriculture  and 
the  mechanic  arts  are  to  be  taught,  was  made  by  act  of  Con- 
gress, approved  July  2d,  1862,  by  the  terms  of  which  is  allotted 
to  each  State  a  quantity  of  the  public  domain,  not  mineral, 
equal  to  thirty  thousand  acres  for  each  senator  and  represent- 
ative in  Congress  to  which  the  States  arc  respectively  entitled 
by  the  apportionment  under  the  census  of  1860  ;  ^  and  where  it 
occurs  that  within  any  State  the  nation  has  not  the  requisite 
lands  to  meet  this  allotment,  the  Secretary  of  the  Interior  issues, 
to  such  State,  land  scrip  to  the  amount  in  acres  of  its  share  of 
the  puljlic  domain  under  the  provisions  of  the  act.  No  State 
can  locate  any  of  this  scrip,  but  the  assignees  of  the  State  may 
do  so  upon  any  of  the  unappropriated  lands  of  the  United 
States  which  are  subject  to  sale  at  one  dollar  and  a  quarter  an 
acre.^     Not  more  than  one  million  acres  can  be  located  by  such 

1  March  ;30tli,  1807,  .?50,000  was  appropriated  to  this  department  forthe  sole  pur- 
pose of  providing  for  the  purchase  of  seeds  for  distribution  in  the  Southern 
States.     (U.  S.  Stat.s.  at  Large,  Vol.  15,  p.  28.) 

2  U.  S.  Stats,  at  Large,  Vol.  12,  p.  503,  Sec.  2. 
«Ibid,  Sec.  2. 


5  ENCOURAGEMENT    OF    AGRICULTUHE.  §  4 

assignees  in  any  one  of  the  States,^  and  no  such  locations  could 
be  made  within  one  year  from  the  date  of  the  passage  of  tlie 
act.2 

§  4.  All  the  expenses  must  be  paid  by  the  States,  in- 
cluding all  disbursements  requisite  to  make  the  donation  avail- 
able for  the  purposes  contemplated,  such  as  those  incident  to 
the  location  of  the  land,  the  sale  of  it,  or  of  the  land  scrip,  the 
collecting,  handling,  and  paying  out  of  the  money  realized 
therefrom,  so  that  the  entire  proceeds  shall  be  applied,  without 
diminution,  to  the  purposes  provided  in  the  act.^ 

All  moneys  derived  from  the  sale  of  the  lands  or  scrip  shall 
be  invested  in  stock  of  the  United  States,  or  of  the  States,  or 
some  other  safe  stock  yielding  not  less  than  five  per  cent,  per 
annum  upon  the  par  value  of  the  stocks,  and  the  fund  thus 
created  and  invested  shall  constitute  a  perpetual  fund  and  re- 
main forever  undiminished,^  except  that  ten  per  cent,  of  the 
capital  of  the  fund  may  be  expended  for  the  purchase  of  lands 
for  sites  of  colleges  or  for  experimental  f arms.^  The  interest  of 
the  fund  shall  be  inviolably  appropriated  by  each  State  to  the 
endowment,  support,  and  maintenance  of  at  least  one  college, 
where  the  leading  object  shall  be,  "  w^ithout  excluding  other 
scientific  and  classical  subjects,  and  including  military  tactics," 
to  teach  such  branches  of  learning  as  are  related  to  agriculture 
and  the  mechanic  arts,  in  such  manner  as  the  legislatures  of  the 
States  may  prescribe  ;  and  if  any  portion  of  this  fund  be  lost, 
it  shall  be  replaced  by  the  State ;  no  part  of  the  fund  shall  be 
used  in  the  purchase,  erection,  preservation,  or  repair  of  any 
building.^     "  Each  State  shall  provide,  within  five  years,  at  least 

1  Ibid,  Sec.  2.  It  api>6ars  that  tie  State  of  "VTisconsin  violated  the  provisions 
of  this  section,  as  May  5th,  1870,  Congress  passed  an  act  legalizing  excessive 
issues  and  locations  of  this  scrip  hy  that  State,  and  directing  the  Commissionei 
of  the  General  Land  Office  to  issue  patents  on  them.  (U.  S.  Stats,  at  Large, 
Vol.  16,  p.  116.) 

2  Ibid,  Sec.  2.  But  this  provision  vras  also  violated,  and  July  1st,  1870,  Con- 
gress legalized  all  locations  of  scrip  made  vrithin  thirty  days  after  the  approval 
of  the  said  Act  of  July  2d,  1862,  which  in  other  respects  were  in  accordance 
therewith.     (U.  S.  Stats,  at  Large,  Vol.  16,  p.  186.) 

3U.  S.  Stats,  at  Large,  Vol.  12,  p.  503,  Sec.  3. 
4  Ibid,  Sec.  4. 
sibid,  Sec.  5. 
cibid,  Sees.  4,5. 


§  5  EXCOURAGEMEXT   OF   AGRICULTURE.  6 

one  college,  for  the  purposes  above  designated,  or  the  grant  to 
such  State  shall  cease. ^  No  State  can  receive  the  benefit  of 
the  act  unless  it  be,  by  act  of  its  legislature,  bound  to  the  pro- 
visions thereof  by  acceptance  of  the  gi-ant  and  of  the  terms 
imposed.^ 

Special  acts  of  Congress,  affecting  several  of  the  States — and 
as  to  them  modifying  these  general  laws — have  been  passed. 

July  4th,  1866,  Congress  passed  an  act  by  Avhich  the  diversion 
of  the  proceeds  from  the  sale  of  lands  and  scrip  received  under 
the  general  laws  above  cited,  from  such  disbursements  as  were 
requisite  for,  or  incident  to,  the  teaching  of  agriculture  and  the 
mechanic  arts,  to  that  of  the  theory  and  practice  of  mining,  is 
allowed  and  authorized  Avithout  causing  a  forfeiture  of  said 
grant.  ^ 

§  5.  Special  provisions  by  acts  of  Congress  as  to  agri- 
cultural colleges  in  specified  States,  have  from  tunc  to  time  been 
made,  adapting  the  general  law  to  the  special  circumstances 
affecting  such  States. 

An  act  passed  June  8th,  1868,*  gives  four  years  from  that  date 
within  which  Nevada  may  select  the  lands  last  above  mentioned, 
and  Sec.  4  of  this  act  provides  that  the  lands  granted  to  the 
State  of  California  under  the  Act  of  July  2d,  1862,  and  acts 
amendatory  thereof,  may  be  selected  by  that  State  from  an}' 
lands  Avithin  her  borders  subject  to  })re-emption  and  sale,  except 
mineral  lands,  and  such  as  to  Avhich  there  may  be  rightful  home- 
stead or  pre-emption  claims  ;  double  niininiiun  lauds  being  taken 
at  double  rates,  one  acre  for  two. 

A  provision  as  to  California  occurs  in  the  Act  of  March  3d, 

1 U.  S.  Stats,  at  Large,  Vol.  12,  p.  504,  Sec.  5.  The  period.s  of  time  have  been 
extended  as  to  all  the  States  by  Act  of  July  23d,  ISfiO,  Vol.  14,  U.  S.  Stats,  at 
Large,  p.  208,  so  tliat  the  acceptance  of  the  benefits  of  said  Act  of  July  2d,  18G2, 
may  be  expressed  within  three  years  from  the  date  of  this  Act  of  July  2od,  IStid, 
and  tlie  colleges  ])rovided  within  live  years  from  the  date  of  filing  such  accept- 
ance with  the  Commissioner  of  the  General  Land  Oflice.  This  act  also  extends 
the  benelit  of  the  original  act  to  new  States.     (Ante,  Note  to  Sec.  3.) 

2  The  time  herein  prescrilied  is  also  extended,  (Ante,  Note  1)  and  even  before 
the  Act  of  July  2:{d,  IWG,  by  Act  of  Aj)ril  14th,  ISCA,  an  extension  of  time  was 
given,  (U.  S.  Stats,  at  I-arge,  A'ol.  13,  p.  47)  but  the  last  extension  is  more 
general,  and  covers  the  whole  ground. 

8  U.  S.  Stats,  at  Large,  Vol.  14,  p.  85,  Sec.  3. 

*  Ibid,  Vol.  15,  p.  07. 


7  ENCOURAGEMENT   OF    AGRICULTURE.  §  6 

1871/  relating,  by  its  title,  to  the  State  of  Nevada.  By  this  act, 
it  is  permitted  to  the  State  of  California  to  make  selections, 
also,  upon  unsurveyed  public  lands,  by  making  application 
to  the  Surveyor-General  for  their  survey,  and  paying  therefor. 
If  there  be  no  appropriation  available  for  such  surveys,  the  Sur- 
veyor-General, upon  such  application,  must  make  the  surveys 
and  file  the  plats  In  the  appropriate  land  offices,  and  thereafter 
the  State  has  thirty  days  wherein  to  perfect  Its  applications,  and 
for  that  length  of  time  there  can  be  received  no  application 
other  than  that  of  the  State  for  the  land  so  surveyed,  provided, 
however,  that  no  valid  pre-emption  or  homestead  rights  shall 
be  thereby  Impaired. 

March  16th,  1872,  another  act  gave  to  Nevada  until  May 
10th,  1877,  within  which  to  avail  itself  of  the  benefits  of  the 
Act  of  July  2d,  1862,  and  acts  amendatory  thereof,  provided  that 
by  that  date  one  college  be  provided  by  said  State.^ 

Oregon  has  a  special  act  by  which  It  may  select,  in  satisfac- 
tion of  the  grant  by  Act  of  July  2d,  1862,  any  land  within  that 
State  subject  to  pre-emption  and  homestead  entry,  and  which 
also  confirms  selections  already  made,  except  where  they  may 
conflict  with  valid  pre-emption  or  homestead  claims,  and  further 
providing  that  this  State  shall  not,  on  this  grant,  receive  more 
than  90,000  acres.^ 

Arkansas  having  complied  with  the  provisions  of  the  Act  of 
July  2d,  1862,  and  the  acts  amendatory  thereto.  Congress,  Dec. 
13th,  1872,  directed  the  Secretary  of  the  Interior  to  issue  and 
"  deliver  to  the  Secretary  of  State  of  Arkansas  the  full  amount 
of  college  scrip,  to  wit,  150,000  acres,  and  90,000  acres  to  the 
Secretary  of  the  Board  of  Trustees  of  the  Florida  State  Agri- 
cultural College  of  the  State  of  Florida,  as  provided  for  in  said 
act,  to  be  used  and  appropriated  to  and  for  the  purposes  and 
objects  In  said  act  specified,  and  none  other:  Provided,  that 
no  scrip  as  aforesaid  shall  be  delivered  to  the  authorities  of  the 
State  of  Arkansas  until  said  State  shall  have  made  some  satis- 
factory arrangement  by  which  the  bonds  of  said  State,  principal 
and  interest,  now  held  by  the  United  States  as  Indian  Trust 
Funds,  shall  be  funded  in  new  bonds  authorized  to  be  issued  by 
said  State  for  this  purpose. 

1  U.  S.  stats,  at  L.  Vol.  IG,  p.  581.      2  ibid,  Vol.  17,  p.  40.      3  i^id,  Vol.  17,  p.  217. 


§  5  ENCOURAGEMEXT   OF   AGRICULTURE.  8 

Indiana  is  permitted  to  comply  with  and  receive  the  benefits 
of  said  general  law  at  any  time  prior  to  July  1st,  1874.^ 

And  on  the  26th  of  January,  1873,  a  general  act  gave  to 
each  of  the  States  which  had  not  had  the  benefit  of  the  said 
law  of  July  2d,  1862,  and  the  acts  amendatory  thereto,  until 
July  1st,  1874,  to  accept  and  receive  such  benefits  upon  compli- 
ance with  the  provisions  thei-cin  contained  and  hereinbefore 
mentioned.^ 

The  foregoing  is  a  summary  of  this  important  legislation  :  by 
its  terms  sufficient  means  are  provided  to  take  the  first  step 
toward  the  endowment  of  at  least  one  college  devoted  to  agri- 
culture and  the  mechanic  arts  in  each  of  the  States.^ 

Corresponding  State  laws  have  been  passed,  the  grant  ac- 
cepted, and  provision  has  been  made  for  the  designated  colleges 
in  many  of  the  States. 

The  questions,  how  far  the  conditions  of  the  grants,  and  their 
acceptance  by  the  respective  States,  bind  the  recipients  to  an 
exact  performance  of  them ;  to  what  extent,  if  any,  material 
departures  from  these  terms  invalidate  the  titles  derived  under 
these  National  and  State  laws,  are  very  seductive ;  but  consid- 
eration of  them  would  lead  us  away  from  The  Law  of  the  Farm. 

1  U.  S.  stats,  at  Large,  Vol.  17,  p.  397. 

2  Ibid,  416. 

8  In  the  title  to  this  act  the  word  "  Territories  "  occurs  in  such  connection  as  to 
intimate  that  they  are,  with  States,  to  receive  the  benefit  of  the  law  ;  but  infer- 
entially  they  are  excluded  by  the  terms  of  the  act,  in  the  provision  that  tlie 
quantity  of  the  land  shall  depend  uiion  the  number  of  senators  and  members  of 
the  lower  house  of  Congress.  Territories  have  no  senators  or  rt'i)rescntatives  in 
Congress,  witliin  the  strict  acceptation  of  the  term,  and  do  not  appear  to  be  able 
to  determine  thereby  tlie  quantity  of  land  to  which  they  are  entitled.  (U.  S. 
Stats,  at  Large,  Vol  12,  p.  503,  Sec.  1.) 

July  23d,  18(3(j,  an  act  passed  Congress  which  extended  the  donation  to  States 
which  had  been  admitted  after  the  passage  of  the  Act  of  July  2d,  18()2,  provided 
such  new  State  should,  by  legal  enactment,  within  three  years  from  the  date  of 
its  admission,  accept  the  trust,  and  provide  for  the  college  within  live  years 
thereafter.    (U.  S.  Stats,  at  Large,  Vol.  14,  p.  208.) 


AGEICULTURAL    SOCIETIES.  §§  G-7 


CHAPTER  II. 

AGRICULTURAL    SOCIETIES. 

§    6.  The  United  States  Agricultural  Society. 

§    7.  Statutes  concerning  agrlculttiral  societies. 

§    8.  Agricultural  societies  in  certain  States. 

§    9.  State  laws  as  to  agricultural  societies. 

§  10.  Statutes  affecting  agricultural  societies. 

§  11.  Statutes  in  certain  States  concerning  agricultural  societies. 

§  12.  Summary  of  legislation  for  agricultural  societies. 

§  13.  Police  powers  by  agricultural  societies. 

§  M.  General  laws  as  to  corporations  affecting  agricultural  societies. 

§  6.  The  United  States  Agricultural  Society. — The  Gen- 
eral Government  lias,  in  at  least  one  instance,  by  the  act  to  in- 
corporate the  United  States  Agricultural  Society,^  recognized 
the  value  of  such  associations,  and  by  the  grant  of  sj)ccial  cor- 
porate powers  to  a  society  of  individuals  under  the  name  of  "  The 
United  States  Agricultural  Society,"  has  enabled  it  to  exercise 
all  of  the  power  of  incorporations,  to  own  property,  sue  and  be 
sued,  receive  gifts  and  bequests,  and  elect  officers  to  control 
its  affairs  and  carry  out  its  purposes.  By  the  provisions  of 
the  act  of  Congress  creating  this  corporation,  any  person  may 
become  a  member  by  j)aying  into  the  hands  of  the  appropriate 
and  designated  officer  the  fees  of  membership  which  may  be 
prescribed  in  the  company's  by-laws  ;  and  provisions  for  the  cre- 
ation and  maintenance  of  honorary  memberships  manifest  the 
high  esteem  in  which  such  an  association  was  held  in  the  minds 
of  the  legislators  who  made  the  law. 

§  7.  Statutes  concerning  agricultural  societies. — Ala- 
bama, by  Act  of  March  3d,  1870,^  providing  for  the  incorpora- 
tion of  agricultural  societies,  prescribes  the  mode  of  procedure, 
and  gives  to  them  the  usual  powers  and  privileges  of  corpora- 

1  U.  S.  stats,  at  Large,  Vol.  12,  pp.  12, 13. 

2  Stats,  of  Alabama,  1809-70,  p.  308. 


§  7  AGRICULTURAL   SOCIETIES.  10 

tions  under  the  laws  of  that  State ;  and  "  for  the  purposes  of 
encouraging,  stimulating,  and  furthering  the  mineral,  agricul- 
tural, and  other  resources  of  the  State  of  Alabama,  all  build- 
ings, factories,  works,  and  machinery  in  j)rocess  of  erection  or 
heretofore  erected  and  used,  from  and  after  the  1st  day  of  Jan- 
uary, A.  D.  1873,"  for  the  purpose  of  refining  cotton,  wool,  to- 
gether with  divers  other  products  of  the  mineral  resources  of 
the  State,  are  exempt  from  taxation.^ 

California,  by  Act  of  May  13th,  1859,  and  amendments 
thereto,^  has  established  the  State  Agricultural  Society  of  Cal- 
ifornia, given  to  it  corporate  powers,  the  right  to  hold  real 
estate,  establish  a  model  farm,  etc.,  and  exempted  all  its  funds 
from  seizure  for  debt  except  such  as  have  accrued  during  the 
year  wltliin  which,  by  appropriations  or  donations,  such  funds 
have  been  received.  March  12th,  1859,^  a  general  act  for  the 
formation  of  agricultural  societies  Avas  passed,  and  by  the  re- 
vision of  the  laws,  18T1— 2,'*  provision  is  also  made  therefor,  by 
which  they  are  permitted  to  hold  or  lease  real  property  to  an 
extent  in  area  of  IGO  acres,  to  hold  fairs  and  otherwise  encour- 
age agriculture,  horticulture,  improvement  of  breeds  of  horses, 
cattle,  etc.  Such  corporations  must  not  incur  any  debt  in  excess 
of  funds  on  hand,  other  than  to  mortgage  its  lands  to  an  amount 
not  to  exceed  $5,000 ;  and  any  directors  who  vote  for  the  incur- 
ring any  debt  other  or  further  than  as  last  above  mentioned,  are 
personally  liable  therefor.  These  societies  ai'c,  by  the  law,  de- 
clared to  be  instituted  and  conducted  not  for  profit ;  they  are  to 
have  no  capital  stock  or  income  other  than  sucli  as  results  from 
charges  for  exhibiting  at  tlicir  fairs,  together  Avith  fees  for  mcm- 
bcrslu}) ;  and  such  fees  must  never  be  greater  than  to  raise  a 
sufHcicnt  revenue  to  discharge  the  deljt  for  tlie  real  estate  and 
the  iiiii)i'<)vemcnts  thereon,  and  to  defray  the  current  expenses 
of  fairs. 

Colorado,  on  the  9th  day  of  February,  1872,^  finding  that  the 
Colorado  Territorial  Agricultural  Society  was  in  debt  to  the 
amount  of  .$10,000,  provided  for  the  assumption  of  this  debt  by 

1  Stats,  of  Alabama,  1872-:i,  p.  72. 
2Hitte]l,  p.  52,  127.5. 

3  T\m\,  \  2<^1. 

4  Civil  Code  of  California,  Sees.  28f!,  020-022. 
6  Laws  of  Colorado,  Ninth  Sess.  p.  54. 


11  AGRICULTURAL    SOCIETIES.  §  8 

said  territory,  the  society  securing  the  territory  by  proper  deed 
of  trust  of  its  property,  and  also  validated  and  gave  effect  to 
the  proceedings  of  the  lioard  of  directors. 

Connecticut  ^  has,  by  its  laws,  ordained  that  every  incorporated 
county  agricultural  society,  which  shall  liave  raised  by  contri- 
bution or  tax  upon  individuals  filOO  or  more,  shall  receive  from 
the  State,  in  September  or  October,  in  each  year,  a  sum  equal 
to  the  amount  raised  by  the  society,  not  to  exceed,  however, 
$200,  the  total  amount  to  be  applied  to  giving  premiums  for  the 
encouragement  of  agriculture,  etc. 

The  State  Board  of  Agriculture,^  composed  of  the  governor, 
one  person  appointed  by  each  county  agricultural  society,  and 
four  other  persons  appointed  by  the  governor,  meets  once,  at 
least,  each  year,  each  member  being  entitled  to  compensation  for 
his  services  at  the  rate  of  $S  per  day ;  and  it  is  the  duty  of  the 
board  to  investigate  such  subjects  relating  to  Improvement  in 
agriculture  and  hoi'tlculturc,  and  have  control  over  all  bequests 
or  donations  made  for  the  promotion  of  agricultural  education  ; 
to  receive  reports  from  the  county  societies ;  and  therefrom,  and 
fi"om  such  other  sources  as  can  be  commanded  annually,  to  pre- 
pare a  report  of  the  same,  in  a  volume  not  to  exceed  250  pages  ; 
the  expenses  of  the  board  to  be  paid  by  the  State.  The  original 
law  appropriating  to  county  societies  has  been  so  amended^  as 
to  establish  a  sliding  scale  of  State  donations,  so  varying  the 
amount  as  that  each  society  which  raises  $300  shall  receive 
from  the  State  that  sum ;  those  which  raise  respectively  $200 
or  $100  shall  have  similar  amounts. 

§  8.  Agricultural  societies  in  certain  States. — Delaware 
has  taken  a  singular  position  in  providing,  by  her  general  police 
act,  that  public  fairs  are  abolished  and  prohibited  within  that 
State,  and  such  exhibitions  are  classed  Avith  horse-racing,  cock- 
fighting,  and  other  disreputable  shows.^ 

Idaho,  although  not  yet  risen  to  the  dignity  of  a  State,  has  so 
far  provided  for  this  Interest  as  to  Incorporate  the  Idaho  Terrl- 

1  Revision  of  18GG,  p.  143. 

2  Stats  of  Conn.  186(3-8,  p.  21). 

3  Stats.  18G9,  p.  345  ;  IlDid,  p.  2D0. 

*  Revised  Code  Delaveare,  1852,  pp.  141-2. 


§  8  AGRICULTURAL    SOCIETIES.  12 

torial  Agricultural  Society,  and  donate  to  it  annually  $1,000,  to 
be  disposed  of  in  premiums.^ 

Illinois,  in  her  general  statute  for  the  incorporation  of  socie- 
ties of  this  character,^  gives  to  them  full  corporate  powers,  but 
makes  stockholders  liable  for  debts  to  the  full  amount  of  sub- 
scriptions, and  holds  the  trustees  personally  liable  for  all  debts 
incurred  in  excess  of  the  capital  of  the  association. 

To  the  several  county  agricultural  societies  is  also  accorded 
police  powers  at  their  fairs  and  exhibitions,  and  if  incorporated 
they  are  exempt  from  taxation. 

In  Indiana,  all  proceeds  from  licenses  to  menageries,  circuses, 
and  similar  shows,  are  devoted  to  the  several  county  agricultural 
societies,^  but  the  society  must  raise  an  equal  amount  by  sub- 
scription oi'  fees ;  all  to  be  devoted  t-o  award  of  premiums.  The 
county  society  must  so  regulate  awards  of  premiums  as  that  it 
shall  be  competent  for  persons  who  farm  on  a  small  scale,  as 
well  as  large  farmers,  to  compete  therefor,  and  must  do  all  in 
their  power  to  encourage  such  competition  as  shall  tend  to  de- 
velop the  best  modes  of  tillage,  raising  crops,  improving  the  soil, 
etc.,  in  all  of  which  the  Indiana  State  Board  of  Agriculture  shall 
give  its  aid,  encouragement,  and  concurrence,  by  holding  State 
fairs,  and  in  such  other  modes  as  may  be  available. 

Subsequent  legislation  permits  the  societies  to  hold  and  dis- 
pose of  real  ])roperty,  assume  liabilities,  and  makes  the  presi- 
dents of  the  several  county  societies  ex-officio  members  of  the 
State  Board  of  Agriculture,^  and  exempts  from  taxation  all 
property  of  said  State  board. 

Iowa  has  classed  agricultural  societies  with  corporations  for 
the  establishment  of  seminaries  of  learning,  churches,  and  other 
associations  not  created  for  pecuniary  profit.^ 

All  county  societies  must  so  conduct  their  business,  in  the  mat- 
ter of  awards,  as  that  it  may  be  competent  for  small  as  well 
as  large  farmers  to  contend  therefor,  and  an  amount,  not  to  ex- 
ceed $200  annually,  is  donated  by  the    State,  a  corresponding 

iLaws  of  Idaho,  Third  Session,  p.  198;  Id.  Fifth  Session,  p.  131. 

2  Stats,  of  ni.  Vol.  1,  p.  12G. 

3  Stats,  of  Ind.  Vol.  1,  p.  GO. 
■»  Ibid, Vol.  .%  pp.  3-0. 

^  Laws  of  Iowa,  Revision  of  18C0,  \t.  201. 


13  AGRICULTURAL    SOCIETIES.  §  9 

sum  to  be  raised  by  the  society  ;  to  tlie  Iowa  State  Agricultural 
Society  is  by  the  State  annually  appropi'iated  $2,000.  The 
county  judge  of  each  county  may,  by  a  vote  of  a  majority  of 
the  qualified  electors  thereof,  be  authorized  to  subscribe,  for  and 
in  the  name  of  the  county,  to  the  stock  of  the  County  Agricul- 
tural Society  to  an  amount  not  to  exceed  $1,000,  and  not  to  ex- 
ceed 8500  in  counties  whose  population  is  less  than  four  thousand 
people.^  The  property  of  such  societies  is  exempt  from  taxa- 
tion,^ and  a  further  act  gives  to  the  supervisors  of  each  county 
power  to  donate  of  the  county  funds  to  the  respective  county  ag- 
ricultural society  a  sum  not  exceeding  $100  for  each  thousand  in- 
habitants, provided  the  society  owns  at  least  ten  acres  of  land ;  ^ 
and  whenever  any  county  society  has  raised  any  sum  of  money 
for  actual  membership,  they  shall  receive  from  the  State  an  equal 
amount,  not  to  exceed  $200. 

§  9.  State  laws  as  to  agricultural  societies. — Kansas  has 
provisions  similar  in  effect  to  those  last  above  mentioned,  in 
that,  by  her  laws,  county  and  State  aid  is  extended  to  the  sev- 
eral agricultural  societies,^  the  substantial  diifcrcnce  being  only 
in  the  mode  of  taxation  prescribed  for  raising  the  money  by 
taxation  at  a  stated  rate  of  assessment  on  the  property  Avithin 
the  county.  Corporations  of  this  character  need  not  "list  for 
taxation  as  part  of  their  capital  stock  the  value  of  their  lands, 
but  said  lands  shall  be  assessed  as  real  property  as  other  lands 
are  assessed."  The  president  of  each  county  society  is  ex- 
officio  a  member  of  the  State  Board  of  Agriculture,  and  when 
any  such  county  society  has  raised  $50,  it  shall  receive  from 
the  State  $200  to  aid  in  their  work.^ 

In  Kentucky,  the  State  Agricultural  Society  is  incorporated,^ 
and  annual  appropriations  by  the  State  provide  for  its  support. 

In  Maine,  the  State  Board  of  Agriculture  is  composed  of  the 
governor,  with  five  members  appointed  by  him,  two  at  least  of 
whom  must  be  from  the  faculty  of  the  State  College  of  Agricul- 

1  Stats,  of  Iowa,  Revision  of  1860,  p.  299. 

2  Id.  Sec.  711,  Stats.  1862,  p.  33. 

3  Laws  of  1866,  p.  137;  Laws  of  1868,  p.  175. 

4  Laws  of  Kansas,  1868,  p.  72;  Stats.  1870,  p.  46;  Laws  of  1S71,  p.  67. 

5  Stats.  1872,  p.  49,  Sec.  8. 

6  Revised  Stats,  of  Kentucky,  Vol.  2,  p.  550. 


§  10  AGRICULTURAL    SOCIETIES.  14 

ture  and  Mechanic  Arts,  and  one  delegate  elected  by  the  State 
Agrlcnltural  Society,  and  one  by  each  of  the  several  county 
agricultural  societies.  This  board  holds  two  sessions  each  year, 
and  all  expenses  are  borne  by  the  State,  but  no  member  re- 
ceives any  pay.^ 

The  State  Agricultural  Society  may  hold  personal  and  real 
estate,  the  annual  income  from  which  shall  not  exceed  $5,000. 

County  and  local  agricultural  societies  may  also  hold  property, 
the  annual  income  of  Avhich  does  not  exceed  $3,000,  and  each 
year  i-eceive  from  the  State  a  donation  to  an  amount  equal  to 
what  has  been  raised  by  the  society  during  the  preceding  year, 
"  but  not  exceeding  one  cent  to  each  inhabitant  of  the  county, 
the  amount  so  raised  and  donated  to  be  devoted  to  granting 
premiums  and  giving  encouragement  to  agriculture,  horticulture, 
etc.  Each  society  must  require  of  all  competitors  for  such  pre- 
miums, either  on  animals,  crops,  dairy  products,  improvements 
of  soils  or  manures,  a  full  and  accurate  statement  of  the  process 
or  method  of  rearing,  managing,  producing,  and  accomplishing 
the  same,  together  with  its  cost  and  value." 

§  10.  Statutes  affecting  agricultural  societies. — In  Mary- 
land, seven  or  more  persons  may  form  themselves  into  an  agri- 
cultural association  with  corporate  powers."  Such  society  can 
hold  property  to  any  amount  not  to  exceed  $50,000,  or  from 
which  is  derived  an  annual  income  not  exceeding  $4,000. 

^  To  several  of  the  county  societies,.in  1872,  there  was  granted 
an  annual  special  donation  by  the  State  ;  and  a  general  hnv  gives 
to  each  county  society  by  the  State,  annually,  an  amount  equal 
to  that  raised  by  the  society. 

Massachusetts  has  laws  by  which  each  county  agricultural 
society,  which  has  raised  and  invested  $1,000,  annually  receives 
from  the  State  $200  ;  ^  but  no  society  can  receive,  any  year, 
more  than  it  has  distributed  in  j)remiums  the  preceding  year.  A 
State  Board  of  Agriculture  exists,  substantially  resembling  that 
of  IMaine.^ 

1  Rftvisfd  Stats,  of  Maine,  1871,  p.  478. 

2  fk-nl.  Stats,  of  ISIaryland,  18(10,  p.  149. 

3  Stats.  1872,  p.  4IJ2. 

*  Genl.  Stats,  of  Mass.  18(J0,  p.  ?,7C, ;  Sniiplcmont  of  18C7-71,  p.  821. 
6  Genl.  Stats,  of  Mass.  18(;0,  p.  141. 


15  AGRICULTURAL    SOCIETIES.  §  11 

IMichigan  ^  has  hj  law  provided  for  tlie  Michigan  State  Agri- 
cultural Society,  and  prescribed,  among  other  things,  that  any 
compctitoi'S  for  premiums  shall  give  full  data  as  to  soil,  manures 
used,  results  obtained,  etc. ;  and  that  to  each  county  society  shall 
annually  be  given  the  result  of  a  special  tax  upon  all  property 
in  the  county,  provided  the  society  raises  $100  or  more,  the 
whole  to  be  expended  in  award  of  premiums,  and  the  diffusion 
of  information  specially  relating  to  agricultural  pursuits.  Such 
agricultural  societies  may  hold  pi'operty,  not  to  exceed  in  value 
specified  amounts  for  county,  city,  town,  or  village  societies,  which 
shall  be  exempt  from  taxation. 

JVIinnesota,  by  general  law,  gives  to  agricultural  societies 
power  to  become  corporations,  and  specially  provides  for  the 
formation  of  State  and  county  agricultural  societies,^  but  ac- 
cords no  special  privileges. 

Missouri  has  a  State  Board  of  Agriculture  ;  ^  also  county  ag- 
ricultural societies.  The  County  Court  may,  by  order,  donate 
of  the  funds  of  the  county  $150  per  year  to  such  county  socie- 
ties, to  be  used  in  award  of  premiums,  etc. 

§  11.  Laws  in  certain  States  concerning  agricultural 
societies. — In  New  York,  by  statute,^  local  agricultural  socie- 
ties may  be  formed,  with  corporate  powers  and  police  regula- 
tions to  govern  their  exhibitions.  Any  person  who  chooses  to 
pay  annually  to  the  society  not  less  than  fifty  cents,  or  more 
than  one  dollar,  can  become  a  stockholder,  with  all  rights  and 
privileges  as  such  ;  and  any  person  who  pays  ten  dollars  be- 
comes a  life  member.  The  lands  of  such  societies  are  exempt 
from  taxation,  and  upon  such  associations  is  imposed  the  duty 
of  obtaining  and  disseminating  useful  information  on  topics  ger- 
main  to  agriculture. 

Whenever  a  county  society  shall  have  raised,  for  the  purposes 
of  its  organization,  any  sum  of  money  not  exceeding  the  amount 
under  the  general  provision  to  which  such  society  is  limited,  such 
amount  so  raised  by  the  society  is  to  be  duplicated  by  the  State.^ 

1  Compiled  Laws  of  Michigan,  1871,  p.  703,  et  seq. 

2  Stats,  at  Large  of  Minnesota,  Vol.  1,  p.  452  ;  Ibid,  466. 
8  Wagner's  Stats,  of  Missouri,  Vol  1,  p.  126,  et  seq. 

4  Genl.  Stats.  N.  Y.  Vol.  3,  p.  761  et  seq. 

5  Ibid,  p.  760  et  seq. 


§  11  AGRICULTURAL    SOCIETIES.  16 

Similar  provisions,  so  far  as  general  characteristics  go,  arc  made 
for  societies  for  improving  the  breed  of  horses,  etc.  Subsequent 
statutes  make  detailed  applications  of  these  laws.^ 

Ohio^  has  made  provision  in  this  behalf,  so  that  county  or  dis- 
trict agricultural  societies  shall  have,  from  the  respective  coun- 
ties, to  them  donated  an  auKumt  erpialing  such  sums  as  the 
societies  may  raise  by  contribution,  donations,  or  fees  exacted  : 
provided,  that,  to  raise  by  taxation  such  amount  to  be  donated, 
the  property  in  the  respective  counties  shall  not  be  assessed, 
shall  not  exceed  half  a  cent  to  each  inhabitant,  and  the  total 
amount  not  to  exceed  annually  two  hundred  dollars. 

The  several  societies  must  annually  offer  and  award  pre- 
miums for  the  improvement  of  soils,  tillage,  crops,  manures, 
etc.,  in  such  manner  that  small  as  well  as  large  farmers  may 
compete  therefor.  The  county  commissioners  of  the  several 
counties  are  authorized  to  aid  local  agricultural  societies  in  pur- 
chase of  appropriate  real  property. 

In  Tennessee,  an  "Agricultural  Bureau  "  of  the  State  govern- 
ment exists,^  composed  of  the  governor,  and  six  members 
appointed  by  the  governor,  and  one  delegate  from  each  county 
agricultural  society. 

The  county  societies  in  each  "  grand  division "  of  the  State 
are  to  hold  fairs,  award  premiums,  etc. ;  and  to  each  of  the 
three  grand  divisions,  viz.,  the  eastern,  middle,  and  western 
division,  is  donated  annually  one  thousand  dollars,  and  to  each 
county  society  is  awarded  annually  two  hundred  dollars. 

Wisconsin  has  a  State  Agricultural  Society,  which  is,  under 
the  law,  a  corporation.  County  societies  are  also  provided  for, 
with  corporate  powers,  and  the  usual  privileges  as  to  conduct  of 
all  exhibitions,  fairs,  etc.  ;  the  State  donates  annually  to  each 
of  the  county  societies  one  hundred  dollars,  and  in  addition 
theret(^  the  board  of  county  supervisors  of  each  county  may 
annually  cause  to  be  levied  a  tax  sufficient  to  x'aise  a  fund  of 
foiii-  liiiii<h-((l  dollars,  which  is  also  to  be  donated  to  the  local 
county   agricuhural    society,  to   be    used   in    conjunction  with 

1  Vol.  3,  Stats,  at  Largo,  N.  Y.  pp.  7G1,  7G3,  7Go,  426,  733,  757,  759,  7G7,  7G8,  770, 
771  ;  Vol.  0,  Stats,  at  Large,  X.  Y.  p.  455  ;  Vol.  7,  Ibid,  pp.  427,  457,  197. 
-  Revised  Stats.  Ohio,  Vol.  1,  p.  Gl  et  seq. 
3  Code  of  Tenn.  p.  127  et  seq. 


17  AGRICULTURAL    SOCIETIES.  §§  12-13 

funds  donated,  raised  by  subscriptions,  and  fees  in  award  of 
premiums,  ctc.^ 

§  12.   Summary  of  legislation  for  agricultural  societies. 

— Tlie  forcgoinr^  is  a  fair  exhibit  of  the  statute  laws  which 
create  and  govern  agricultural  societies  in  the  United  States. 
In  each  State  and  Territory  some  recognition  is  accorded  to 
this  class  of  corporations ;  they  arc  treated  distinctively  as 
a  specially  favored  class,  and  no  other  class  of  associations 
has,  by  the  several  legislatures,  been  treated  with  more  marked 
consideration. 

These  societies  are  private  corporations ;  as  such,  are  compe- 
tent to  hold  property  and  sue  and  be  sued  in  the  several  Courts  ; 
they  are,  however,  unlike  most  corporate  bodies,  not  organized 
with  a  view  to  their  own  enrichment,  but  for  the  public  good. 

To  them,  corporate  powers  are  given,  not  to  be  exercised  in  a 
manner  most  likely  to  advance  the  interests  of  the  members 
of  the  society  alone,  or  of  them  in  their  united  character,  but 
that,  receiving  public  aid,  their  acts  may  encourage  an  industry 
upon  which  the  well-being  of  the  State  largely  depends. 

§  13.  Police  powers  have  been  delegated  to  agricultural 
societies  because  of  their  ^wasi-public  character ;  to  them  have 
been  given,  by  the  statutes  of  several  States,  some  of  the  attri- 
butes and  powers  of  a  branch  of  the  Government.  Thus,  to 
them  Is  now  allowed,  on  occasions  of  exhibitions  and  fairs, 
police  powers  to  guard  against  disturbance  and  to  enforce  their 
rules ;  they  may  license  or  prevent  minor  exhibitions,  shows, 
entertainments,  etc.,  sell  booths,  and,  for  the  time  l^eing,  enjoy 
an  existence  apart  from  the  body  of  the  county  in  this  respect. 
But,  although  the  recipients  of  especial  poAvers  in  this  connec- 
tion, it  must  not  be  supposed  tliat  these  bodies  are  beyond  the 
pale  of  the  general  law,  or  are  shielded  in  any  infringement 
thereof. 

The  powers  conferred  on  them  are  statutory  and  exceptional ; 
they  must  be  exercised  only  within  the  limits  and  to  the  extent 
allowed  by  statute  ;  and  any  abuse  or  excess  in  the  use  of  such 

1  Stats,  of  Wisconsin,  Vol.  1,  p.  10G5  et  seq. 

Farm — 2. 


§  14  AGRICULTURAL    SOCIETIES.  18 

powers  creates  a  liability  against  the  corporation,  which  the 
law  Avill  enforce.  Thus,  in  CommonAvealth  v.  Ruggles,^  there 
was  a  trial  in  Avhich  it  appeared  that  at  the  time  of  the  as- 
sault and  battery  alleged,  and  which  was  the  gTavamen  of  the 
action,  the  officers  of  the  special  police  of  an  agricultural  so- 
ciety, at  a  fair,  were  clearing  the  streets  of  the  town  from  a 
crowd  of  persons  for  an  exhibition  of  the  trotting  of  horses  ; 
the  liigliAvay  Avas  within  the  limits  fixed  by  the  officers  of  the 
society  for  the  purpose  of  said  exhibition.  The  Court  held  that 
the  officers  of  an  agricultural  society  have  no  authority  to  fix 
and  define  bounds  within  Avhich  no  one  can  be  permitted  to 
enter,  except  in  conformity  with  the  regulations  prescribed  by 
them,  for  the  purpose  of  exiiibiting  horses,  or  establishing  a 
race-course  or  trotting-ground.  The  ])Ower  conferred  on  them 
is  a  statutory  one,  and  it  must  be  exercised  Avithin  the  exact 
limits  prescribed  by  law ;  and  they  have  no  right  to  include  a 
liighway  Avithin  the  bounds  set  apart  by  them  for  their  exhibi- 
tion, so  as  to  obstruct  the  public  travel  thereon.  It  is  not  a 
proper  answer  for  them  to  say  that  there  Avas  sufficient  room 
for  public  traA^el  on  the  liighAvay  outside  of  the  limits  included 
Avithin  their  lines.  They  had  no  authority  to  exclude  public 
travel  from  any  portion  of  the  Avay. 

§  14.  Agricultural  societies  subject  to  general  laws 
affecting  corporations. — In  accepting  the  benefits  of  a  corpo- 
rate existence,  agricultural  societies  assume  the  responsibilities 
of  corporate  bodies ;  they  may  sue  and  be  sued,  and  generally 
must  exercise  A-igilance  to  avoid  the  dangers  of  their  position 
rather  than  rely  upon  innnunity  because  of  their  quasi-\mhlic 
character.  Only  by  ])roper  provision  for  exhibitions,  guarding 
against  danger  of  accidents,  and  care  in  the  matter  of  the 
business  Avliich,  as  a  body,  the  society  has  in  hand,  can  such  im- 
munity be  obtained. 

In  the  case  of  BroAvn  and  Wife  v.  South  Ken.  Agricultural 
Society,^  the  plaintiffs  brought  an  action  to  recoA^er  damages 
alleged  to  have  been  sustained  by  the  female  plaintiff  by  the 
giving  Avay  and  falling  of  a  portion  of  a  building  Avhich  Avas 
OAvned  and  used  by  defendants  upon  their  fair  grounds. 

1  (I  Allen,  588.  2  47  llaine,  275. 


19  AGRICULTURAL    SOCIETIES.  §  14 

On  the  defense,  it  was  urged  that  the  society  was  but  a  quasi- 
corporation,  such  as  counties,  towns,  and  the  like,  against  which 
no  action  will  lie  unless  expressly  given  by  statute,  and  that 
such  associations  were  only  in  name  corporations. 

The  Court  held  that  if  a  natural  person,  on  his  own  account,  had 
erected  such  a  building  wherein  to  exhibit  productions  of  nature 
or  art,  and  an  injury  had  thus  been  sustained,  the  common  law 
would  have  afforded  an  ample  remedy.  That  such  a  society  as 
the  defendant  is  not  in  the  line  of  "  hundreds,"  "  counties,"  or 
"  towns,"  a  cfiasi-corporixiion  only,  but  is  more  properly  to  be 
regarded  as  an  aggregate  corporation,  which,  as  defined,  consists 
of  several  persons  united  in  one  society,  and  they  are  liable  for 
negligence,  or  lack  of  that  ordinary  care  which  the  law  imposes, 
and  judgment  was  given  to  plaintiffs  for  the  personal  damages 
sustained  by  Mrs.  Brown. 


§  15  CROPS.  20 


CHAPTER  IIL 

CROPS. 

§  15.  Growing  crops  the  subject  of  contracts. 

§  16.  Status  of  growing  crops  on  sale  of  land. 

§  17.  Reservation  of  growing  crops  on  sale  of  land. 

§  18.  When  reservation  of  crop  sliould  he  in  writing. 

§  19.  Query  as  to  necessity  of  written  resers'ation  of  crop. 

§  20.  Value  of  rule  that  reservation  of  crop  must  be  in  writing. 

§  21.  As  to  growing  crop  when  land  is  mortgaged. 

§  22.  Rights  of  tenant  as  to  crops  on  mortgaged  lands. 

§  23.  "What  protection  tenant  can  have  as  to  his  crop  against  mortgageer. 

§  24.  Levy  of  execution  on  growing  crops. 

§  25.  Distinction  hctwccn  fmctus  naturalcs  and  fnictus  indnstriales. 

§  26.  Exemption  of  growing  crops  from  seizure. 

§  27.  Construction  of  statutes  exempting  growing  crops. 

§  28.  Waiver  of  exemption  of  growing  crops  from  seizure, 

§  29.  Chattel  mortgages  on  growing  crops. 

§  30.  Disposal  of  crops  before  tliey  are  raised. 

§  31.  "When  anticipated  crops  may  be  mortgaged. 

§  32.  Notice  of  chattel  mortgage  on  crops. 

§  33.  Relation  of  homestead  exemption  to  growing  crops. 

§  34.  Statute  of  Frauds  as  to  growing  crops. 

§  35.  Owncrsliip  of  crop  dependent  upon  title  to  land. 

§  36.  General  jiropositions  as  to  disposal  of  crops. 

§  37.  Prima  vesturu  and  annual  crops. 

§  15.  Growing  crops  the  subject  of  contracts. — Grow- 
ing crops,  altliough  having  no  immediate  value,  and  depending 
on  contingencies,  have  yet  such  an  existence  as  to  be,  legally, 
the  subject  of  sales,  mortgages,  and  other  contracts,  which  pass 
interests  to  vest  in  possession,  either  immediately  or  at  a  future 
time.^  But  with  these  confessed  characteristics  of  property,  the 
condition  of  things  is  such  that  the  ownership  and  control  of  the 
crop  is,  to  a  greater  or  less  extent,  affected  by  the  title  to  the 
land  on  which  it  is  growing. 

AVhcre  land  was  sold  by  a  deed  conveying  the  fee-simple  ab- 
solute, without  any  reservation  or  mention  made  of  the  crops 

1  Adams  r.  Tanner,  5  Ala.  740;  Westbrook  v.  Eager.  1  Ilarr.  81;  Nathan  ?j.  The 
State,  1  Carter  (Ind.)  ll.i. 


21  CROPS.  §  15 

gTOwing  upon  it,  possession  being  delivered  to  the  vendee,  it  was 
held  that  the  crop  remained  the  property  of  the  vendor,  because 
it  was  deemed  to  be  personal  estate.^  And  so  where  the  owner 
of  the  land  leased  the  same,  reserving  for  rent  a  certain  propor- 
tion of  the  crops  which  should  be  raised  thereon,  and,  while  the 
crops  were  growing  on  the  land,  sold  the  premises  to  a  third 
person,  by  an  absolute  deed  of  conveyance,  without  reservation 
of  the  growing  crop  thereon,  it  was  held  that  the  deed  passed  to 
the  grantee  the  right  to  the  rent  and  that  the  tenant  must  attorn 
to  the  grantee,  but  that  the  grantee  could  not  maintain  trespass 
against  the  grantor  for  entering  ujion  the  land  and  carrying 
away  the  crop.^ 

In  another  leading  case,  the  plaintiff  made  to  S  advances 
upon  certain  personal  property  and  a  growing  crop,  taking  as 
security  a  bill  of  sale  thereof ;  S  became  bankrupt,  but  his 
assignee  in  bankruptcy  waived  his  claim  to  the  growing  crop : 
defendant,  a  judgment-creditor  of  S,  delivered  to  the  sheriff  a 
fi-fa-  on  his  judgment,  and  thereupon  the  sheriff  sold  the  crop, 
and  the  creditor  became  the  purchaser,  took  and  carried  away 
the  crop,  and  plaintiff  sued  for  its  value. 

It  was  held  that,  as  against  the  defendant,  the  execution-cred- 
itor and  purchaser,  the  plaintiff  was  entitled  to  the  proceeds  of 
the  crop.^ 

In  Bricker  v.  Huges,'*  the  question  was  fairly  presented  as 

1  Smith  I'.  Jolauston,  1  Penn.  St.  471;  Mauldiu  v.  Armistead,  14  Ala.  702,  in -which 
the  principle  is  clearly  recognized  that,  although  a  mere  confidence  or  exjiecta- 
tion  entertained  by  a  factor  that  a  bill  (drawn  by  the  grower  of  a  crop  and  ac- 
cepted by  the  factor)  will  be  paid  out  of  a  ijarticular  crop  of  cotton,  will  not  take 
from  the  drawer  the  right  to  make  an  adverse  disposition  of  the  cro]).  The 
grower  of  the  crop  may,  without  the  formalities  attending  a  conveyance  of  real 
property,  or  without  any  conveyance  of  an  estate  in  the  land,  convey  his  grow- 
ing crop  in  trust  for  the  payment  of  a  debt. 

-  Gibbons  v.  Dillingham,  5  Eng.  9.  In  the  same  opinion,  however,  the  law  is 
declared  to  be,  that  a  conveyance  of  the  land,  without  reservation,  is  a  convey- 
ance of  the  growing  crop  thereon,  and  the  discrepancy  between  the  jiroposi- 
tions,  that  such  a  sale  of  the  land  does  and  does  not  carry  the  crop,  begins  to 
appear. 

3  Congreve  v.  Evetts,  26  Eng.  Law  and  Eq.  493. 

4  4  Ind.  14G. 

To  this  point  see  also  the  opinion  in  Frank  v.  Harrington,  31  Barb.  415,  in 
which  case  hops  growing  and  maturing  upon  the  vines  were  held  to  be  personal 
property  which  may  be  sold  by  parol,  although,  in  opposition,  the  point  was 
distinctly  made  that  they  were  of  the  nature  of  realty,  because,  the  roots  and 
substance  being  of  the  earth,  the  i^roduct  should  be  considered  as  an  incident  or 


§  16  CROPS.  22 

to  whether  growing  crops  were  to  be  regarded  as  personal  prop- 
erty, subject  only  to  the  ordinary  form  of  sale  as  sucli ;  and  the 
ruling  was  that  they  Avere  personal  property  even  before  matur- 
ity, as  such  can  be  sold,  and  the  sale  does  not  necessarily 
involve  an  interest  in  realty  requiring  a  Avritten  agreement. 

§  16.  By  a  sale  of  land,  the  crop  growing  on  it  passes  to 
the  vendee  as  a  general  rule,  altliough  growing  crops,  being 
regarded  only  as  personal  property,  subject  to  the  rules  of  trans- 
fer, incumbrance,  and  ownership  of  such  property,  it  is  not  clear 
why  a  conveyance  of  the  land  should  carry  them  any  more 
than  it  does  the  live  stock,  which  depends  for  its  existence  and 
has  been  grown  upon  the  land. 

The  weight  of  authority,  however,  is  against  the  conclusion 
which  appears  to  be  deducible  from  the  reasoning  last  suggested, 
and  the  true  rule  seems  to  be  that  a  conveyance  of  the  land  car- 
ries with  it  the  growing  crops,  vines,  trees,  grass,  and  Avliatever 
else  is  attached  to  the  soil,^  unless  there  is  some  express  excep- 
tion, reservation,  or  stipulation  to  the  contrary  in  the  conveyance.^ 

Where  land  had  been  sold  on  an  execution,  it  was  held  that  a 
crop  of  corn  growing  thereon,  not  then  matured,  passed  to  the 
purchaser  of  the  land.'^      And  in  another  instance,  similar  in 

appurtenant  to  tlae  laud.  The  reason  why  tlie  hops,  before  seA'crance  from  the 
vines,  should  be  deemed  personal  property,  is  by  the  Court  said  to  be  that  the 
value  of  the  crop  depends  on  the  labor,  manure,  and  jioles  bestowed  by  the 
grower  ;  but,  on  the  other  hand,  in  Kalston  v.  Ralston,  3  Iowa,  5oo,  plaintiff's 
husband  died  Oct.  10th,  1851,  siezed  in  fee  of  certain  lands.  A  piece;  of  the  land 
was,  on  tlie  12tli  day  of  ISIarch,  1852,  set  off  and  conlirmed  to  the  widow  as 
dower  in  fee  :  on  the  land  so  set  off  to  her  was  a  CTop  of  Avheat,  sown  in  the 
husband's  lifetime,  but  which  had  not  been  harvested  when  the  dower  was  set 
off.  The  question  was,  "  Is  the  widow  or  the  executor  entitled  to  tlie  wlieat  ?  " 
Held  in  favor  of  the  widow,  in  analogy  to  the  principle  that  if  A  sells  a  farm  to 
I?  on  which  there  are  growing  emljlements,  and  does  not  make  a  special  reserva- 
tion of  sucli  emblements,  they  pass  with  the  title  to  B. 

14  Kent's  Com.  marginal  page,  4G8. 

-Terhune  ?'.  Elberson,  2  Fenn.  72(i;  1  Leigh,  305.  Per  Carr,  Judge,  in  Foot  v. 
Colvin,  3  Johns.  222.  ^^'ilkins  i.\  Vaslil)indcr,  7  Watts,  73S,  overruling  Smith  v. 
Johnson,  Ante,  Sec.  15. 

8  Pitts  V.  Hendricks,  0  Geo.  452.  In  another  case,  the  land  of  a  judgment- 
debtor  was  sold  by  the  sheriff,  and  a  deed  made  to  the  purchaser  while  the  grain, 
also  bi;loiiging  to  the  deljtor,  was  growing  on  tlie  land.  ^  After  the  execution,  ac- 
knov.ledgment,  and  delivery  of  the  deed  by  the  sheriff,  anotlier  execution-cred- 
itor of  the  same  debtor  levied  on  th(!  grain  and  sold  it,  and  tlie  purcliaser  of  the 
grain  at  this  second  sale  brought  suit  against  the  tenant  oi  tlie  purchaser  at  the 
sale  of  the  land,  for  cutting  and  removing  the  grain.    It  was  held  that  the  grow- 


23  CROPS.  §§  17-18 

effect,  where  a  landlord  leased  land  to  a  tenant  to  put  in  a  crcjp, 
the  land  being  subject  to  a  judgment  against  the  landlord,  the 
tenant  put  in  the  crop,  but  before  he  coidd  harvest  it  the  land 
was  sold  ui)on  the  judgment,  and  the  purchaser  was  held  to  be 
the  owner  of  this  crop,  and  not  the  tenant.^ 

§  17.  Reservation  of  growing  crops,  when  a  sale  of  the 
land  is  made,  is  both  common  and  lawful ;  any  reservation  in,  or 
exception  from,  the  operation  of  a  conveyance  of  land,  Avill  control 
the  conveyance  to  the  extent  designated.^  By  the  general  terms 
of  a  conveyance  of  the  fee  in  lands,  all  which  is  attached  to  the 
soil  is  presumed  to  pass  with  the  fee  ;  but  this  is  only  a  pre- 
sumption, and  may  be  met  by  proof  of  exception  from  the 
conveyance  ;  an  exception  is  always  a  part  of  the  thing  granted, 
or  out  of  the  general  words  and  description  in  the  grant,  and  so 
long  as  the  reservation  is  not  equal  to  the  whole  of  the  thing 
granted,  it  is  valid,  and  cannot  be  deemed  so  repugnant  to  the 
deed  as  to  make  it  void.  Manifestly,  however,  if  the  reserva- 
tion is  as  large  as  the  grant  itself,  it  nuist  yield  to  the  deed,  and 
be  treated  as  not  having  been  made ;  and  so  if  the  thing  ex- 
cepted is  specifically  granted  in  the  conveyance,  an  exception 
afterward  appearing  therein,  of  the  same  thing,  would  be  of  no 
legal  effect ;  but  where  a  deed  is  general  in  its  terms  any  res-' 
ervation  of  a  specified  portion  of  it  is  good,  and  the  grooving 
crops,  upon  the  theory  that  it  is  part  of  the  estate  which  would 
pass  by  the  conveyance,  may  be  regarded,  therefore,  as  a  por- 
tion of  the  property  which  may  be  reserved  by  the  grantor. 
Where  the  exception  is  valid,  the  title  to  the  thing  excepted  re- 
mains in  the  grantor,  with  the  like  force  and  effect  as  if  no 
grant  had  been  made. 

§  18.  Reservation  should  be  in  -writing,  when. — Reser- 
vation of  a  crop,  growing  at  the  time  the  land  is  sold,  should  be 
in  writing,  as  the  presumption  appears  to  be  that  the  sale  of 
the  land  carries  the  crop,  and  this  presumption  ought  to  be  met 

ing  crop  passed  by  the  sheriff's  sale  of  the  land,  and  that  the  purchaser  of  the 
grain  at  the  second  sale  got  no  title,  and  could  not  maintain  the  action.  (Bear 
V.  Bitzer,  1(5  Penn.  St.  [4  Harris]  175. ) 

1  Sallade  v.  James,  (5  Barr.  144. 

2  Kent's  Com.  marginal  page,  4G8  ;  Crews  i'.  Pendleton,  1  Leigh,  (Virg.)  297. 


§  19  CROPS.  24 

by  evidence  of  as  high  a  character  as  that  which  gives  rise  to  it. 
Such,  if  not  the  settled  law,  is  the  safer  rule,  and  appears  to 
be  correct,  reasoning  by  analogy,  as  well  as  by  the  earlier  rul- 
ings of  the  Courts.^ 

The  written  instrument  must  be  considered  as  containing  the 
true  agi'cement  between  the  parties,  and  as  furnishing  better 
evidence  of  their  intentions  than  any  which  can  be  supplied  by 
parol.  A  written  contract  cannot  be  contradicted  by  parol,  and 
all  that  which  passes  between  parties  previous  to  the  execution 
and  delivery  of  the  written  agreement  is  merged  in  the  writing. 

§  19.  Must  reservation  of  crops  be  in  "writing  ?  Query. 
— ^The  rule  that  reservations  of  growing  crops  must  be  in  writ- 
ing lias  been  departed  from,  and  inasmuch  as  to  sell  a  gi'owing 
crop,  mortgage  and  otherwise  deal  Avith  it  apart  from  the  land, 
as  personal  property  rather  than  real  estate,  is  a  right  clearly 
recognized,  and  there  have  occurred  circumstances  under  which 
the  strict  letter  of  this  rule  has  been  departed  from,  in  import- 
ant cases  decided  by  able  judges,  the  rule  itself  must  not  be  re- 
ceived without  considering  these  cases,  or  regarded  as  absolute. 

In  Pennsylvania,  1852,  Judge  Black,'-^  in  a  case  involving  the 

1  (iibbons  r.  Dillinj^liam,  5  Eng.  !).  This  caso  was  decided  in  Arkansas  in  1844. 
Dillinpflmin  owned  the  hind,  and  sokl  it  to  (libbons  by  a  deed,  absolute  on  its  face, 
convejMnjj  tlie  fee-simple.  A  crop  of  corn  was  growing  on  the  jilace  when  it  was 
thus  sold,  and,  after  the  delivery  of  the  deed,  was  delivered.  Dillingliam  com- 
menced to  harvest  the  corn  and  convert  it  to  his  owni  use,  wliei-eupon  G  ob- 
jected, pulled  out  his  deed,  showed  it  to  D,  and  declared  that  by  virtue  of  said 
convcj'ance  he  claimed  to  be  the  owner  of  the  crop;  and  ordered  the  vendor, 
I),  to  desist  from  removing  it,  but  D  persisted,  harvested  and  carried  away  tlie 
crop,  and  (r  sued  him  for  its  value. 

To  tliis  suit  the  defendant  pleaded:  lii-st,  not  guilty;  and  second,  that  tlie 
said  supposed  trespass  was  committed  hij  leave  and  license  of  plaint  ij)'. 

On  tlie  trial,  Gibbons  read  the  deed,  proved  the  taking  and  canying  away  of 
the  cro]i,  wliich  was  growing  on  the  laud  wlien  it  was  conveyed  to  him,  its  value, 
and  rested,  defendant  relied  upon  a  parol  agreement  by  wiiicli,  at  tlie  time;  of 
tlie  sale  to  G,  lie  reserved  tliis  crop  of  corn;  to  the  introduction  of  the  evidence 
of  this  parol  reservation,  plaintiff  objected;  being  tn-erniled,  excepted;  and  the 
decision  of  the  cau.se,  on  appeal,  turned  on  tlu;  i)oiiit  under  consid(!ration, 
which  was  clearly  made  and  fully  considered. 

Tlie  Court  h(;ld  that  a  resers^ation  of  the  crop  could  not  be  proved  by  parol ; 
that  tlie  Court  below  ch^arly  erred  in  r(;ceiving  any  evidence  tending  to  sliow  a 
special  reservation  by  Dillingliam  of  his  interest  in  the  crop,  as  he  did  not  think 
pror>er  to  insert  it  in  his  deed. 

Per  (Jhief  .Justice  .lohuson,  page  14. 

2  Saclmer  v.  Ilex,  20  Penu.  St.  (8  Harris)  Vh. 


25  CROPS.  §  19 

■\;iluc  of  this  rule,  said :  " This  was  trespass  for  cutting  and  car- 
rying away  certain  grain,  which  the  phiintiff  alleged  to  be  his  ; 
one  of  the  exceptions  taken  is  to  the  admission  of  evidence,  which 
went  to  show  that  when  he  sold  his  land  to  defendant  it  was  dis- 
tinctly agreed  that  the  growing  crop  of  grain  thereon  should  be 
reserved,  and  not  pass  with  the  land.  The  scrivener  testified 
that  both  parties  told  him  to  insert  this,  and,  finding  he  had  not 
done  so,  requested  him  to  interline  it,  but  afterward  agreed  that 
it  need  not  be  done,  since,  as  they  knew  it  themselves,  it  was 
not  necessary.  The  grain  belonged  to  the  vendor.  The  vendee 
had  not  bought  it,  and  would  not  have  it. 

"  To  confine  a  party  to  the  terms  of  a  written  agreement,  from 
which  an  important  part  of  the  actual  bargain  is  omitted  at  the 
request  of  the  other  party,  and  on  his  solemn  assurance  that  it 
shall  be  performed,  though  not  inserted,  is  such  a  fraud  as  the 
jurisprudence  of  no  civilized  country  will  tolerate. 

"The  evidence  was  admissible  beyond  a  doubt.  The  vendor 
was  entitled  to  relief  in  equity,  though  not,  perhaps,  under  the 
head  of  mistake."^ 

By  the  Supreme  Court  of  Ohio  ^  it  was  held  that  a  growing 

1  The  Court  was  not  of  equity,  or  trying  a  chancery  case  to  reform  the  deed. 
The  simple  deduction  to  be  drawn  from  tlie  Language  is  that  a  reservation  of  the 
growing  crop  from  tlie  sale  of  the  land  miglit  be  made  in  jiarol,  because  the  legal 
proposition  must  stand  on  its  own  merits,  apart  from  any  consideration  of  pecu- 
liar hardship  or  special  circumstances  affecting  the  indiAndual  case  under  review. 
-  Baker  v.  Jordan,  3  Ohio  St.  438.  Tliis  case  is,  in  several  respects,  at  apparent 
variance  with  the  rule  mentioned  in  the  text,  and  with  the  general  current  of  au- 
thorities. The  distinguished  jurist  who  wrote  the  oi^inion  (Warden,  J.)  declares 
the  law  to  be  :  "That  growing  crops  will  pass  by  common  deed  of  the  lands 
whereon  they  grow,  when  no  valid  conversion  of  them  into  personalty  is  sho'WTi 
to  have  preceded  the  conveyance,  cannot  be  doubted  ;  but  whether  such  convey- 
ance ahoays  inirports  to  carry  the  title  to  growing  crops  is  another  question.  jMany 
things  may  be  in  or  upon  the  ground  wlien  a  deed  is  made,  which  the  parties  do 
not  intend,  and  which  no  inflexible  rule  of  law  requires,  to  fall  under  the  con- 
veyance. Such  things  are  realty  or  personalty  according  to  the  intention  of  the 
parties. 

"Where  the  vendor  had  allowed  his  tenant  to  put  uiion  the  land  buildings  and 
fixtures,  under  an  agreement  that  he  might  remove  tliem,  would  a  deed  to  a 
stranger  jiurport  to  convey  them  ?  Why  not,  then,  construe  the  deed,  in  all 
cases,  to  be  a  conveyance  of  the  buildings,  and  why  admit  proof  to  show  that 
the  buildings  did  not  pass,  unless  it  is  that  such  proof  does  not  vary,  enlarge, 
diminisli,  or  contradict  the  deed  ? 

"When  we  consider  the  case  of  a  parol  sale  of  growing  crops  to  A,  and  a  sub- 
sequent deed  of  the  land  to  Ij,  we  must  allow  that  proof  of  such  sale,  and  notice 
of  its  having  been  given  to  B  when  he  took  liis  deed,  would  establish  satisfac- 


§  20  CROPS.  2G 

crop  iniiilit,  by  parol,  be  reserved  from  the  oi^eration  of  the 
deed  ;  that  it  Avas  personal  property,  although  for  some  pur- 
poses regarded  as  a  part  of  the  realty,  and  that,  in  construing 
the  deed,  the  parol  understanding  of  the  parties  that  the  crop 
was  reserved  by  the  vendor  will  be  regarded  and  enforced,  not- 
withstanding the  fact  that  the  deed  is  absolute  on  its  face  ;  that 
the  evidence  of  such  a  parol  agreement  is  not  a  contradiction  of 
the  deed,  but  is  consistent  with  it,  and  shows  that  what  would, 
in  some  instances,  go  with  the  land  under  the  conveyance,  was 
by  the  will  of  the  parties  converted  into  personalty. 

§  20.  The  rule  that  reservations  must  be  in  writing 
questioned. — Ivcgarding  these  decisions,  and  viewing  the  prop- 
osition from  the  stand-point  of  this  exhaustive  reasoner,  the  value 
of  the  rule,  that  the  reservation  of  the  crops  from  the  operation 
of  the  deed  must  be  in  writing,  does  not  remain  so  great  as  at 
the  first  glance  it  appears. 

Conceding  that  the  growing  crop  can  be  sold  necessarily  ad- 
mits that  the  purchaser  may — must — allow  it  to  mature  upon 
the  land  ;  he  cannot  prevent  a  sale  of  the  realty,  and  the  pur- 
chaser does  not  necessarily  know  that  the  crop  is  sold. 

Many,  if  not  most,  of  the  later  decisions  meet  this  difficulty 
fairly  by  regarding  the  growing  crops  as  personal  property,  sub- 
ject only  in  effect  to  the  laws  controlling  the  disposition  of  that 
class  of  property,  and  freed  from  the  necessity  of  treating  them 
as  real  property,  or  governed  by  the  laws  affecting  estates  or  in- 
terests in  land.^ 

torily  that  the  parties  to  tho  docd  never  intended  to  treat  the  crop  as  part  of  the 
realty,  or  within  tlie  conveyance.  Docs  the  evidence  of  sucli  intention  vary  or 
contradict  the  det.'d  ?    I  think  not. 

"However  little  favor  should  he  shown  to  parol  reservations  made  by  the 
vendor,  there  must  be  some  which  are  valid.  It  is,  in  such  instances,  a  question 
of  intent.  ^Vhere  that  intent  relates  to  things  which  may  sometimes  be  treated 
as  realty,  and  sometimes  as  personalty,  the  evidence  of  its  manifestation  in  the 
conduct  of  the  parties,  or  in  their  words  at  the  date  of  the  deed,  does  not  seem 
to  alter,  enlarge,  or  limit  their  written  contract  ;  for,  as  already  observed,  that 
contract  does  not  necessarily  embrace  such  things." 

1  In  IJricker  v.  Hughes,  4  Ind.  14G,  it  was  held  that  growing  crops  were  per- 
Bonal  property,  even  before  maturity,  as  such  could  be  sold  ;  and  the  sale  did 
not,  necessarily,  involve  an  interest  in  realty  requiring  a  written  agreement. 

In  Frank  v.  Harrington,  :{1  IJarb.  415,  hops  growing  and  maturing  on  the  vines 
are  decided  to  be  personal  jiroperty,  which  may  be  sold  by  parol.  In  this  case, 
the  point  was  distinctly  made  that  tlioy  were  of  the  nature  of  realty,  because. 


27  CROPS.  §§  21-22 

§  21.   Mortgaging  of  land,  on  which  are  growing  crops, 

incidcntiilly  raises,  as  to  the  crop,  the  proposition  last  above 
considered,  with  such  additional  side  issues  as  distinguish  mort- 
gages from  absolute  conveyances.  The  reasoning  in  Baker  v. 
Jordan,  Ante,  Sec.  19,  is  not  necessarily  applicable,  as  the  mort- 
gage may  have  been  made  before  the  crop  Avas  put  in,  and  in 
such  event  there  would  probably  be  no  understanding  whatever 
as  to  it  by  the  parties. 

The  general  tenor  of  the  rulings  of  the  Courts  has  been  that 
a  mortgage  binds,  not  only  the  land,  but  the  crops,  while  grow- 
ing on  it,  and  a  person  purchasing  the  premises  under  a  fore- 
closure sale  is  entitled  to  the  crops  which  may  be  grown  thereon 
at  the  time  of  the  sale  ;  ^  that  not  only  the  land  stands  as 
security  for  the  money  loaned,  but  also  the  crops  grown  thereon 
until  they  are  severed  from  the  soil.^ 

If  the  mortgagor  put  in  a  crop  on  the  mortgaged  premises, 
he  does  it  with  full  knowledge  of  the  fact  that  the  land,  v/ith 
the  crop,  is  liable  to  be  sold  if  the  decree  should  be  obtained 
before  the  crop  is  harvested,  but  the  mortgagor  is  not  necessarily 
injured  ;  theoretically,  upon  the  assumption  that  at  the  sale  full 
value  is  realized  from  the  disposition  of  the  property ;  the  crop, 
as  well  as  the  land,  brings  its  price,  and  the  crop  is  thereby  paid 
for.^ 

§  22.  The  tenant  upon  mortgaged  land  may  lose  his 

crop ;  he  takes  a  peculiar  risk,  as  his  growing  crop  may  en- 
hance the  value  of  the  security  without  benefiting  him ;  gener- 
ally the  Courts  have  held  that  where  a  mortgagor  leases  his 
farm  the  lessee  has  no  right  to  crops  growing  thereon  at  the  time 
of  foreclosure  and  sale  under  the  mort2;ao:e,  and  the  mortgiisee, 
or  any  other  purchaser  at  such  sale,  may  maintain  trespass 
against  the  lessee  for  taking  and  carrying  away  the  crops.* 

the  roots  and  substance  being  of  the  earth,  the  product  could  only  be  considered 
as  an  incident  or  appurtenant  to  the  land  ;  but  the  ruling  was  dii-ect,  and  con- 
tradicted this  proposition  upon  the  reasoning  that  the  value  of  the  crop  de- 
pended on  the  labor,  poles,  and  manure  bestowed  by  the  grower. 

1  Shepherd  v.  Philbrick,  2  Denio,  174. 

2  Gilbert  v.  Balcom,  6  Barb.  370  ;  Jones  v.  Thomas,  8  Blackf.  428. 
8  Crews  V.  Pendleton,  1  Leigh,  297,  305-. 

*Lane  v.  King,  8  Wend.  584.  In  December,  1827,  Lampman  executed  a  mort- 
gage on  his  farm  to  King,  to  secure  the  payment  of  81,300,  of  which  $'250  was 


§  23  CROPS.  28 

§  23.  The  tenant  cannot  be  protected  against  a  mort- 
gage on  the  land  made  before  tlie  lease  ;  there  apj^ears  to  be  no 
way  by  whieh  he  can  with  safety  raise  a  crop  on  mortgaged 
land,  as  the  mortgagor  cannot  lease  the  land  so  as  to  protect 
the  growing  crop  from  the  mortgage. 

The  general  rule,  as  above  indicated,  is  that  a  mortgagor, 
whether  in  possession  of  the  premises  or  not,  cannot  make  a 
lease  so  far  binding  upon  the  mortgagee  as  to  secure  to  the  ten- 
ant the  crop  which  is  growing  on  the  land  Avhen  the  foreclosure 
sale  is  made.^  The  leading  case  upon  this  topic  is  that  of  Kcech 
V.  Hall,^  in  which  Lord  Mansfield  reviews  the  Avhole  subject, 
and  gives  his  opinion  in  the  following  language  : 

"The  mortgagor  has  no  power,  express  or  implied,  to  let 
leases  not  subject  to  every  circumstance  of  the  mortgage. 

"  Whoever  Avants  to  be  secure  when  he  takes  a  lease  should 
inquire  after  and  examine  the  title  deeds." 

In  the  same  case,  however,  it  Is  said,  by  the  same  learned 
judge,  that,  if  the  mortgagee  had  encouraged  the  tenant  to  lay 
out  money,  he  could  not  maintain  his  action  against  him  for  con- 
version of  the  crop  which  was  growing  on  the  land  at  the  time 
of  the  sale. 

A  settled  modification  of  the  rule,  consistent  with  justice, 
appears  to  exist  to  the  extent  that  if  the  mortgagee  so  encour- 
age a  third  party  as  to  induce  him  to  put  in  the  crop,  or  even  to 
assent  to  his  doing  so  without  notifying  tlie  tenant  that  he  will, 

to  be  paid  within  one  year,  and  the  residue  in  four  equal  annvial  installments. 
In  June,  1820,  Lamiiraan  let  part  of  the  farm  to  Lane,  for  the  term  of  two  years, 
at  the  yearly  rental  of  835  ;  Lane  to  be  entitled  to  the  grain  in  tlio  ground  at  the 
expiration  of  the  lease.  September  2;)d,  182!),  King  liled  his  bill  to  foreclose  the 
mortgage,  not  making  Lane  a  partj'',  and  obtained  an  order  of  sale  in  December, 
1820,  under  whicli  the  premises  were  sold  ;  the  mortgagee,  King,  became  the 
purchaser,  and  took  possession.  At  tliis  time  there  was  a  croii  of  rye  on  the 
laud,  which  Lane  had  put  in  under  his  lease,  and  when  this  grain  was  lit  to 
liarvest,  lie  cut  and  carried  it  away.  Thereupon,  King  sued  Lane  for  the  value 
of  the  rj-e,  and,  under  the  instructions  of  tlie  Court,  recovered. 

On  appeal,  this  judgment  was  affirmed,  on  the  ground  that  the  lessee  of  a 
mortgagor  is  not,  as  against  the  purchaser  at  foreclosure  sale,  entitled  to  the 
growing  crops  ;  that,  as  between  the  lessee  of  the  mortgagor  and  the  mortgagee, 
or  tlie  ])urcliaser  under  his  foreclosure  sale,  there  is  no  privity  of  contract  or  es- 
tate, and  the  lessee  is  not  (!ven  entitled  to  notice  to  quit  from  tlie  mortgagee  on 
such  ])urchase  at  the  foreclosure  sale. 

1  Llilliard  on  Mortgages,  Vol.  1,  ji.  103. 

-  1  IXiug.  p.  21. 


29  ■  CEOPS.  §  24 

if  he  get  the  land,  claim  the  crop,  tlicn  and  in  such  event  he 
■will  not  he  permitted  to  take  it  upon  his  foreclosure  sale  ;  ^  but 
how  far  a  third  party  purchasing  at  the  sale  would  be  bound  by 
such  encouragement,  permission,  or  consent,  is  questionable. 

§  24.  Levy  of  process  upon  grooving  crops. — Distress, 
attachment,  and  execution  may  be  made  or  levied  upon  growing 
crops,  in  accordance  with  the  statutes  of  the  several  States. 
Everything  produced  by  annual  planting,  cultivation,  or  labor 
is  liable  to  distress  for  rent,  (where  distress  is  allowed)  and  may 
be  taken,  and  upon  due  process  sold  on  execution,  ^  even  when 
crrowinsi:  and  immature.^ 

In  such  taking,  the  sheriff  may  wait  until  the  crop  is  ripe, 
and  then  cut  and  carry  it  away^  and  sell  it ;  but,  except  where 
by  statute  he  is  expressly  required  so  to  do,'^  he  need  not  wait. 

1  Condon  v.  Sanford,  Hill  &  Den.  lOfi.  In  this  case,  it  was  held  that  wliore, 
before  foreclosure,  the  mortgagor  leased  the  land,  on  shares,  to  a  third  party,  and 
the  mortgagee  assented  to  this  arrangement,  the  x'lurchaser  at  foreclosure  sale 
could  not  maintain  the  action  against  the  tenant  of  replevin  for  the  crops.  The 
Court  herein  also  reviews  the  subject  of  the  admissibility  of  parol  evidence  to 
show  the  knowledge  of  the  mortgagee  of  the  terms  of  this  letting  of  the  land 
upon  the  husbandry  contract  mentioned,  of  liis  assent  to  the  same,  and  of  his 
agreement  that  the  mortgage  should  not  affect  the  rights  of  the  grower  of  the 
crop  in  the  jiremises. 

The  gi'ound  covered  by  and  the  conclusions  arrived  at  are  the  same  as  in  Ba- 
ker V.  Jordan,  Ante,  Sec  19,  wherein  Judge  "Warden,  in  giving  the  opinion  of 
the  Court,  declares  that  such  evidence  is  not  of  a  character  to  enlarge,  limit,  or 
vary  the  terms  of  the  written  instrument,  and  is,  therefore,  not  subject  to  the 
objection  made  thereto  that  the  -v^Titing  being  silent  as  to  the  matter  of  growing 
crop,  the  presumption  should  be  that  it  was  intentionally  omitted  ;  that  the 
growing  crop  is  but  personalty  is  also  more  than  hinted  at,  and  the  opinion  is 
much  influenced  by  that  view. 

In  Whipi^le  v.  Foote,  2  Johns.  218,  it  is  asserted  that  wheat,  grox^ing.  is  a 
chattel,  and  —  if  raised  upon  the  land  of  another,  pursuant  to  an  agreement 
with  him  and  the  defendant  —  may  be  levied  on  and  sold  under  an  exectition 
against  the  latter. 

2  Gwinne  on  Sheriffs,  220  ;  Crocker  on  Sheriffs,  207. 

3  Stewart  v.  Dougherty,  9  Johns.  108;  McKenzie  v.  Lamley,  31  Ala.  52G;  Pen- 
hallow  V.  Dwight,  7  Mass.  34.  In  the  decision  of  which  the  Court  says  that  corn 
and  any  other  product  of  the  soil,  raised  annually,  by  labor  and  cultivation,  is 
personal  estate,  and  may  be  taken  in  execution  while  standing  in  the  field,  if 
ripe  and  fit  to  be  gathered. 

4  As  in  the  Statutes  of  Minnesota,  1873,  p.  829,  special  provision  is  made  as 
follows:  "A  levy  may  be  made  on  grain  or  grass  while  growing,  and  upon  any 
other  unharvested  crop,  but  no  sale  thereof  shall  be  made  under  such  levy  until 
the  same  is  ripe  and  tit  to  be  harv^ested,  and  any  levy  thereon  by  virtue  of  an 
execution  shall  be  continued  beyond  the  return-day  thereof,  if  necessary,  and 


§  25  CROPS.  30 

but  may  t^oll  tlie  crop  as  it  stands,  before  it  is  matured  or  sev- 
ered from  the  ground.^ 

§  25.  Fmctus  naturales  and  fructus  industriales. — 
GroAving  grass,  trees,  and  other  spontaneous  growths  are  not 
regarded  as  chattels,  or  liable  to  seizure  :  they  are  sharjdy  dis- 
tinguished from  growing  crops.  The  latter  are  said  to  be  chat- 
tels ;  they  go,  on  the  death  of  the  owner,  to  the  executor,  and 
during  the  lifetime  of  the  owner,  may  be  taken  in  execution  as 
chattels.  In  a  Xew  York  case,  where  liops  growing  on  the 
vines  are  declared  to  be  personal  property,  it  is  admitted  that 
they  approach  very  near  to  that  class  of  productions  which  can 
only  be  treated  as  realty,  that  is  to  say,  the  finiit  from  trees, 
shrubs,^  etc. 

AVith  regard  to  fructus  nati/rales,  the  established  rule  ap- 
pears to  be  that  not  only  grass,  trees,  and  the  other  spontane- 
ous yield  of  the  soil  are  to  be  considered  to  be  a  part  of  the  realty, 
but  also  the  crop  from  such  trees  or  other  fruit-bearing  plants  : 
they  are  parcel  of  the  realty,  must  be  sold  as  such,  and  the  levy 
of  an  execution  is  Aoid  when,  and  so  far  as.  made  upon  trees 
and  annual  productions  of  the  earth,  as  clover,  timothy,  sponta- 
neous grasses,  apples,  pears,  and  peaches,  while  ungathered,  or 
yet  growing ;  these  are  all  regarded  as  incident  to  the  land. 
Growing  trees  are  the  subjects  of  grant  and  conveyance  by  deed, 
as  something  of  which  wc  predicate  freehold  and  inheritiince, 

remain  in  life,  and  the  execution  thereof  may  he  completed  at  any  time  within 
thirty  days  after  such  grain,  grass,  or  other  unharvested  crop  is  ripe,  or  lit  to  be 
harvested." 

1  Craddock  v.  Eiddlesberger,  2  Dana,  205.  '"The  authorities  leave  no  pretext 
for  doubting  that  growing  corn  is  a  chattel,  and  may  be  sold  as  such  by  the 
ownier,  or  taken  by  an  officer  in  virtue  of  a  process  of  Jicri  facias." 

The  oidy  doubt  which  has  been  intimated  is  as  to  the  proper  time  of  selling 
imder  an  execution.  "  But  tliough  some  have  expressed  tlic  opinion  that  the  sale 
should  be  postponed  until  after  tlie  crop  shall  have  become  mature  and  been 
severed  from  the  ground,  it  seems  that,  prior  to  an  act  of  the  last  legislature,  (of 
Kentucky)  the  l.iw  conceded  the  riglit  to  sell  the  corn  in  the  condition  in  which 
it  was  when  the  execution  was  levied  on  it. 

"  The  right  to  levy  implies  the  right  to  sell  as  soon  as  legal  notice  can  be  given. 
Was  it  tlie  duty  of  the  officer  to  keep  possession  cif  growing  corn  for  montlis 
after  liis  h\-y,  and  in  the  meantime  to  cultivate  and  gather  it,  or  be  responsible 
for  its  loss  or  deterioration  ?" 

-  Frank  i-.  Harrington,  31  Barb.  -115  ;  Evans  v.  Kobcrts,  5  Barnwell  &:  Cres- 
well,  829. 


31  CROPS.  §  25 

even  thougli  no  right  in  tlio  soil  on  which  they  are  standing,  passes, 
thorebv,  beyond  that  of  having  them  stand  thereon  and  (U-rive 
nntrinient  therefrom  till  they  are  severed.^ 

In  Inmk  v.  C'ary,-  the  facts  presented  the  (puv^tion  whether 
grass  growing  on  land  covdd  be  levied  on,  as  a  chattel,  under  an 
execution  against  the  owner  of  the  land,  when  It  was  turned  out 
by  defendant  to  be  so  taken,  or  when  such  levy  is  made  by  and 
with  the  consent  of  the  defendant,  the  owner  of  the  hnid  ;  and 
It  was  held  that  properly  it  could  not. 

The  distinction  is  clearly  marked  between  growing  crops 
which  owe  their  existence  to  the  labor,  care,  and  fei'tilization  be- 
stowed on  them  by  the  ]>roducer,  and  growing  trees,  fruit,  grass, 
and  the  other  natural  products  of  the  earth  which  grow  spon- 
taneously and  without  eidtivation. 

Just  hoAv  far  trees  and  fruit-bearing  jdants,  Avhlch  are  purely 
the  result  of  skill  and  labor,  manure  anil  care,  come  under  the 
rule  that  they  are  of  the  realty,  is  not  well  established. 

All  the  older  standard  authorities  declare  them  to  be  so,  but 
the  reason  of  the  nice  distinction  does  not  appear,  and  in  the 
statute  law  of  at  least  one  of  the  States  the  converse  of  the 
proposition  is  recognized,  so  far  as  nursery  trees  arc  concerned  ;  ^ 
but  here  occurs  a  peculiar  reason  for  distinguishing  such  from 
other  trees,  in  that,  like  crops,  they  owe  their  value  to  the  labor 
and  skill,  etc.,  of  the  nurseryman.^ 

iGwinne  on  Sheriffs,  p.  220;  Crocker  on  Sheriffs,  p.  207  ;  Toll.  Law  of  Exrs. 
192  ;  3  Bae.  Abr.  G4. 

2 1  Barb.  542  ;  2  Black.  Com.  122-3. 

8  Civil  Code  of  California,  p.  501,  Sec.  2058:  it  is  declared  that  all  growing  crops, 
nursery  trees,  and  other  anticipated  products,  are  personal  jiroperty. 

*  A.  L.  J.  Jan.  29th,  ISTC,  p.  70. 

"  A  parol  agreement  for  the  sale  of  growing  trees,  the  trees  to  be  severed  and 
taken  from  the  land  by  the  vendee,  will  amount  to  a  license  for  the  vendee  to 
enter  upon  the  vendor's  land  for  the  purpose  of  making  such  severance  ;  and  if 
the  license  lie  not  revoked  before  tlie  trees  are  severed,  the  title  to  the  trees  will 
vest  in  the  vendee,  and  the  license,  after  such  severance,  will  become  coupled 
with  an  interest,  and  irrevocable  ;  and  the  vendee  will  have  a  right  to  enter  and 
remove  the  trees  thus  severed  ;  but  if,  before  the  trees  are  severed,  the  A^endor 
should  i-evokc  such  license,  no  title  will  pass  to  the  vendee,  and  no  riglits  will 
vest  by  virtue  of  such  parol  agreement."    (Owens  v.  Lewis,  Q!  Tnd.  488.) 

"AVhen,  in  a  deed  of  growing  trees  to  bo  removed  by  the  grantee  from  the 
grantor's  land,  the  terms  of  the  grant,  taken  in  their  literal  and  usual  sense, 
signify  an  absolute  convt^yance  of  the  title  of  the  trees,  the  grant  is  not  made 
a  conditional  one  by  stipulation  (express  or  imi)lied)  as  to  the  time  of  removal." 
(Hoyt  V.  Strattou  Mills,  54  N.  II.  109.) 


§§  26-27  CROPS.  32 

§  26.  Exemption  of  grooving  crops  from  seizure. — Grow- 
ing crops  are  exempt  from  seizure,  under  distress  or  attachment, 
in  Maine  ^  and  Vermont.  ^  In  Virginia,  certain  crops  arc,  and 
others  are  not,  exempt,  ^  and  the  laAv  in  West  Virginia  is  similar 
in  effect.* 

In  Wisconsin,  certain  animals  are  free  from  seizure,  and  the 
statute  also  exempts  the  necessary  food  to  feed  them  for  one 
year,  whether  the  same  is  grooving,  or  harvested  and  on  hand, 
or  both,  as  the  debtor  may  choose,  and  the  same  provision  for 
the  support  of  the  animals  of  the  farm  for  the  period  of  six 
months,  occurs  in  the  laws  of  Michigan.  ^ 

By  the  statutes  of  Colorado,  there  is  an  exemption  from  seiz- 
ure of  the  provisions  for  the  support  of  the  debtor  and  his  family 
for  the  period  of  six  months,  "either  growing,  or  provided, 
or  both."*^ 

Kentucky  has  a  like  exemption  of  provisions  for  the  debtor's 
support,  and  that  of  his  family,  for  the  period  of  twelve  months, 
including  growing  crops. 

§  27.   The  construction   of  statutes  of  exemption  has 

caused  much  discussion  in  the  Courts.  On  the  one  hand,  it 
has  been  reasoned  that  human  progress  toward  a  high  standard 
of  civilization  and  humanity  has  gradually  discarded  from  the 
law  the  system  of  personal  indignities  to  which  the  unfortmiate 
debtor  was  subjected,  and  that  the  community  is  interested  in 

"And  if  no  time  is  expressly  fixed,  the  construction  generally  is  that  the 
grantee  has  a  reasonable  time  for  removal."    (Ibid,  109. ) 

"If  the  grantee,  after  the  expiration  of  such  reasonable  time,  enters  and  re- 
moves tlie  trees  Avhioli  were  absolutely  conveyed  to  him  liy  the  deed,  he  is  liable, 
in  trespass,  for  the  entry,  but  not  for  the  value  of  the  trees."  (lb.  109  ;  I'lumer 
V.  Prescott,  43  X.  II.  277  ;  Dame  v.  Dame,  38  N.  H.  429. ) 

"An  unconditional  conveyance  of  growing  trees,  without  the  land,  instantly 
severs  them  from  the  land,  in  contemplation  of  law,  and  transforms  them  into 
personal  jiroperty."    (Kingsley  v.  Holbrook,  45  N.  II.  313.) 

J  I'.y  tlie  revised  Statutes  of  Maine,  1871,  p.  G27,  all  growing  crops  are  exempt 
from  seizure  imtil  severed  from  the  land. 

2  I{evised  Statutes  of  Vermont,  18U2,  p.  363,  Sec.  13. 

8  I5y  the  C'odf!  of  ^'irginia,  p.  28(j,  Sec.  32,  it  is  provided  that  no  growing  crop, 
of  any  kind,  sliall  be  liable  to  distress  or  le\-y,  except  Indian  corn,  which  may 
be  so  taken  at  any  time  after  October  15th  of  any  year. 

^  Code  of  West  Virginia  of  18C8,  p.  254,  Sec.  18,  is  in  substance  the  same  as  tliat 
of  Virginia. 

''  Laws  of  Michigan,  1871,  p.  1742  et  seq. 

6  lievised  Stats.  Colorado,  p.  380,  Sec.  33. 


33  CROPS.  §  28 

provision  being  made  to  guard  against  the  causing  of  pauperism 
by  taking  from  the  family  of  tlie  debtor  all  means  of  su})port. 

That  from  true  humanitarian  premises  it  must  be  deduced 
that  these  provisions  for  exemption  from  seizure  of  such  im- 
plements of  labor,  and  for  support,  in  and  pending  the  debtor's 
attempt  to  recuperate  his  financial  strengtli,  should  be  liberally 
construed,  as  far  as  consistent  with  the  rights  of  others,  in  his 
favor ;  and  that  even  the  creditor  should  be  interested  in  the 
laws  being  so  administered  as  to  encourage  the  debtor  to  make 
efforts  to  regain  his  lost  solvency.^ 

But,  on  the  other  hand,  it  is  said  that  the  owner  of  property 
is  only  conditionally  so ;  that,  if  he  is  in  debt,  the  property  is 
not  his  own,  because  its  very  possession  may  well  be  the  induce- 
ment which  has  led  to  his  being  trusted,  and — to  the  extent  of 
his  indebtedness — he  holds  it,  morally,  in  trust  for  his  creditors ; 
that  statutes  of  exemption  are  innovations  of  the  law  for  the 
sole  benefit  of  the  debtor ;  that  he  alone  knows  his  true  status 
financially,  and  has  in  that  an  advantage ;  and  between  him  and 
the  creditor,  that  the  laws  of  exemption  should  be  rigidly  con- 
strued against  the  debtor,  both  in  justice  and  from  the  public 
interest  that  capital  should  freely  circulate,  and  credits  be  well 
sustained,  by  the  law.^ 

From  the  decisions,  and  the  general  practice  in  the  Courts,  it 
is,  however,  now  to  be  deduced,  that  the  leaning,  if  there  can 
be  any  in  construction,  is  in  favor  of  the  debtor,  and  the  con- 
stantly increasing  leniency  manifested  by  the  statute  law  of  the 
several  States  in  this  behalf,  keeps  even  pace  with  the  judicial 
humanity  manifested  by  the  Courts. 

§  28.  Exemption  is  a  personal  right,  which  the  debtor 
may  waive  or  claim,  at  his  election.- 

Although  it  has  been  held  that  the  debtor  need  not  designate 
what  articles  he  claims  to  be  exempt  —  that  it  is  for  the  ofllicer 

iGilmanr.  "Williams,  7  AVis.  329;  Connaughton  r.  Sands,  32  Wis.  387;  Allison 
?'.  Brookshire,  38  Tex.  199.  "Statutes  exempting  property  from  attachment  are 
remedial,  and  should  be  construed  liberally  in  favor  of  the  debtor."  "Webster  v. 
Cone,  45  Yt.  40.    To  the  same  effect,  Kuntz  v.  Kinney,  33  Wis.  510. 

2  Temple  v.  Scott,  3  INIinn.  419. 

3  Bowman  v.  Smiley,  31  Penn.  St.  p.  225. 

Faem — 3. 


§  29  CHOPS.  34 

to  know  the  law,  and  to  obey  it  at  his  periP — prudence  dictates 
that  the  election  should  be  made  and  the  officer  notified  of  it; 
such  is  the  custom,  and  by  the  better  array  of  authorities 
declared  to  be  the  law,  that  the  claim  of  exemption  is  a  per- 
sonal privilege  of  the  person  against  whom  the  writ  runs,  and 
that,  iii  the  absence  of  any  such  claim,  the  shcriif  should  levy.^ 

§  29.   Chattel  mortgages  upon  growing  crops  are  in  use 

in  most,  if  not  all,  of  the  States,  are  provided  for  by  statute, 
and  due  provision  is  made  for  the  record  of  them.  There  is, 
however,  a  point  of  time  when  a  chattel  mortgage,  or  any  other 
disposition  of  a  crop,  can  be  made  only  at  some  i-isk.  That  is, 
when  the  seed  has  been  sown  or  planted,  but  no  growth  above 
the  ground  has  appeared. 

In  The  Bank  of  Lansingburgh  v.  Crary,"^  Pi^igc,  J.,  said:  "I 
strongly  incline  to  the  opinion  that  a  chattel  mortgage  can  only 
operate  on  property  in  actual  cxistf^nce  at  the  time  of  its  execu- 
tion ;  that  it  cannot  be  given  on  the  future  products  of  real  estate, 
and  that  if  given  one  day  or  one  week  before  the  product  of 
the  land  comes  into  existence,  it  is  as  inoperative  as  if  the  chat- 
tel mortgage  had  been  given  on  a  crop  of  grass  or  grain  one, 
two,  or  three  years  previous  to  its  production." 

The  law  as  to  mortgages  is  that  whatever  property,  personal 
or  real,  is  capable  of  an  absolute  sale,  may  be  the  subject  of 
mortgage,"*  but  that  which  existed  only  in  the  hopes  of  the 
planter,  without  any  visible  existence  at  all,  is  not  within  any  of 
the  definitions  of  property.^ 

1  Gilman  v.  AVilliaras,  7  Wis.  329.  2  state  v.  Uclogae,  9  Ind.  196. 

3  1  Barbour,  551.  ■»  Story's  Eq.  Jur.  Sec.  1021. 

6  Con(l(3raan  ?'.  Smith,  41  Barb.  404.  A  chattel  mortgage  was  given  "of  a 
wagon,  sleigh,  harness,  and  also  all  the  grain  growing  on  the  lands  rented, 
all  tlio  corn  and  potatoes  now  planted  thereon,  all  the  hay  growing  on  the 
gi'onnd  on  said  premises,  all  the  fruit  growing  thereon,  all  the  interest  of  the 
mortgagor  in  and  to  the  butter  and  cheese  to  be  made  from  the  cows." 

This  mortgage  was  attacked  on  the  ground  that  a  chattel  mortgage  could  only 
operate  upon  property  in  existence  at  the  time  of  its  execution,  and  could  not 
be  given  upon  tlie  future  products  of  land. 

The  ruling  on  tliis  jioint  was  that  at  law  a  sale  or  mortgage  of  property  to  be 
acquired  in  the  future,  (the  vendor  or  mortgagor  neither  liaving  acquinnl  tWe 
tliijig  nor  the  agentof  its  produclionat  the  time  of  making  the  contract)  creates 
no  valid  lien  on  subsisting  property.  I$ut,  if  the  future  acqiured  property  bo 
ilie  product  of  the  jiresent  jiropcrty  in  the  mortgagoi',  as  the  wool  growing  on  a 
flock  of  sheep,  or  the  produce  of  a  dairy  farm,  or  anything  of  that  character, 
the  mortgagf!  will  take  cfTect  upon  the  property  as  soon  as  it  comes  into  exist- 
ence, and  will  be  perfectly  binding  at  law.    (Taylor  v.  Foster,  22  Ohio  St.  255.) 


35  CROPS.  §  30 

§  30.  Disposal  of  anticipated  crops. — Crops,  like  otlier 
personal  property,  must  exist  before  they  can  be  made  the  sub- 
ject o£  sale  or  mortgage ;  this  existence  may  be  actual  or  poten- 
tial, and  i*n  defining  a  potential  existence,  such  as  will  I'cnder 
possible  a  sale  or  mortgage,  the  authorities  are  apparently  in 
conflict  upon  the  matter  of  crops  which  have  not  yet  been 
sowed.  The  standard  authority  in  the  older  cases  appears  to  be 
Sheppard's  Touchstone,  (p.  24)  in  which  it  is  said  that  trees, 
grass,  and  corn  growing  and  standing  on  the  ground,  fruit  upon 
trees,  and  wool  upon  the  sheep's  back,  may  be  mortgaged  or 
sold.  When  the  crop  is  growing,  although  not  matured,  it  may 
be  sold  or  mortfjao;ed,  but  when  its  existence  has  not  commenced 
It  would  appear  that  no  sale  or  moi'tgage  could  be  made  of  it.^ 

Such  is  not  only  the  conclusion  arrived  at  by  the  Court  in 
Kentucky  in  a  case  lately  decided,  but  the  conclusion  there 
arrived  at  seems  to  be  generally  accepted.^ 

Under  the  California  Code,^  however,  the  converse  of  this 
proposition  is  decided  to  be  law,  two  of  the  five  justices  dis- 
senting. It  being  held  that  a  crop  not  yet  sowed,  or  for  the  sow- 
ing of  which  the  ground  had  not  been  plowed,  could  be  mort- 
"•ai>;ed.'* 

T-  Shep.  Touch.  241,  Title  Grant;  BrowTiell  v.  Hawkins,  4  Barb.  401;  Story  on 
Bail.  287. 

2  Hutchinson  v.  Ford,  9  Bush,  Ky.  318.  "A  mortgage  of  a  crop  to  be  raised 
on  a  farm  during  a  certain  term  jiasses  no  title  if  the  crop  was  not  sown  when 
the  mortgage  was  executed,  and  the  mortgagee  has  no  claim  against  the  jjur- 
chaser  of  tlie  croii  for  its  value."  (3  Cent.  L.  J.  151,  IMarch  3d,  1876;  Milman  v. 
Neher,  20  Barb.  38;  Brownell  v.  Hawkins,  4  Barb.  491;  Jones  v.  Richardson,  10 
Met.  481;  Codman  v.  Freeman,  3  Cush.  30G.) 

3  Civil  Code  Cal.  Sec.  2955. 

*  Arques  v.  "VVaston,  Sup.  Court,  Cal.  July  24,  1876:  a  crop  was  mortgaged  be- 
fore the  ground  had  been  even  plowed  to  sow  the  seed;  a  creditor  attached, 
and  the  mortgagee  replevied  from  the  sheriff;  the  Court  held  the  mortgage 
good,  in  the  decision  using  the  language  following: 

"  The  point  chiefly  relied  upon  for  a  reversal  is,  that  at  the  date  of  the  mortgage 
the  croj")  had  not  even  a  potential  existence,  the  ground  not  having  been  plowed 
or  the  seed  sown ;  and  it  is  claimed  that  there  can  be  no  valid  mortgage  of  a 
thing  not  in  esse.  It  is  conceded  by  counsel  that  if  the  thing  has  a  iwtential  ex- 
istence, as,  for  example,  wool  to  be  grown  from  sheep  then  belonging  to  the 
mortgagor,  or  butter  to  be  thereafter  produced  from  his  cows,  or  a  crop  arising 
from  seed  already  sown,  '..'.ft  mortgage  would  be  valid. 

"The  general  rule  undour>tedly  is  that  a  person  cannot  convey  a  thing  not  in 
esse,  or  in  which  he  has  no  present  interest.  But  it  is  quite  as  well  settled  that,  if 
the  thing  has  a  potential  existence,  it  may  be  mortgaged  or  hypothecated.  '  If 
one,  being  a  iierson,  give  to  another  all  the  wool  he  shall  have  for  tithes  the 
next  year,  this  is  a  good  grant,  although  none  may  arise ;  for  the  tithes  are  poten- 


§  31 


CROPS.  86 


§  31.  Crops  may  be  moitgaged,  when? — Tf  the  means 
of  producing  property  is  visible,  tangible,  and  in  the  hand3 
of  the  mortcraiior,  or  under  hi.s  control,  so  that  some  result 
therefrom  is  reasonably  certain,  such  anticipated  property 
may  be  made  the  subject  of  a  chattel  mortgage,  as  the  wool 
growing  upon  a  flock  of  sheep;  the  butter  or  cheese  to  be 
made  in  a  stated  season,  the  cows  from  which  it  is  to  be 
made  being  the  proj)erty  of,  or  in  the  possession  of,  the 
mortgagor,  and  due  provision  having  been  made  for  dairy- 
ing from  them,^  and  in  this  category  may  be  classed  growing 

tially  in  the  person.  *  *  *  So  one  may  grant  all  the  wool  of  lii3  sheep  for 
seven  years;  but  not  of  the  sheep  which  he  shall  thereafter  purchase.'  (Van 
Hoozer  ?■.  Corj',  34  Barb.  12,  and  authorities  there  cited. )  '  Land  is  the 
mother  and  root  of  all  fniits.  Wherefore,  he  that  hatli  't  may  grant  all  fruits 
that  may  ari.se  upon  it  after,  and  the  property  shall  pass  as  soon  as  the  fruits  are 
extant.'  (Grantham  v.  Hawley,  Hob.  R.  132.)  In  Van  Hoozer  v.  Cory,  Supra, 
the  Court  holds  that  'the  same  principle  is  adjudged  applicable  to  the  annual 
crops,  the  fruit  of  the  annual  labor  of  the  lessee;  as  if  a  lessor  covenants  that  it 
shall  be  lawful  for  the  lessee,  at  the  expiration  of  the  lease,  to  carry  away  the 
com  growing  on  tlie  premises,  although  by  possibility  there  may  be  no  com 
growing  at  tlie  expiration  of  the  lease,  yet  the  grant  is  good,  for  the  grantor  had 
such  a  power  in  him,  and  the  property  shall  pass  as  soon  as  the  corn  is  extant.' 
So  there  may  be  a  valid  grant  of  the  grain  that  a  field  is  expected  to  grow.  (1 
Parsons  on  Cont.  523  N.  K. ;  McCarthy  v.  Blevins,  5  Yerg.  19.j. )  In  Van  Hoozer 
r.  Cory,  Supra,  the  grant  was  of  the  cheese  expected  to  be  made  from  the  cows 
of  the  grantor  and  '  the  prnducU  expected  to  he  raised  upon  the  premises  then 
flrmisrd  to  tlie  (jrantor ' ;  and  this  was  held  to  be  a  valid  grant.  In  that  case,  the 
(juestion  involved  here  was  carefully  considered  by  the  Court  upon  a  full  ex- 
amination of  the  authorities,  and  we  are  satisfied  with  the  conclusion  at  which 
it  arrived.  But  the  same  question  arose  in  the  later  case  of  Conderman  r. 
.Smith,  41  Barb.  404,  in  which  the  ruling  in  Van  Hoozer  v.  Cory  was  approved ; 
and  .Johnson,  .7.,  in  delivering  the  opinion  of  the  Cotirt,  said :  '  Tliat  case,  (Van 
Hoozer  »-.  Cory)  like  this,  was  an  action,  by  the  lessor  and  purchaser,  against  a 
creditor  of  the  lessee,  who  had  taken  and  sold  the  products  of  the  farm  and 
dairy  upon  execution;  and  the  Court  held  that  it  did  not  fall  within  the  rule 
which  prohibits  the  selling  or  mortgaging  of  property  not  in  existence,  or  not 
owned  by  the  vendor  or  mortgagor.  It  was  the  product  of  property  which  the 
vendor  owned  at  the  time,  and  was,  as  it  is  expressed  in  the  books,  potentially 
his,  and,  therefore,  the  subject  of  sale."  On  the  rule  established  in  the.se  cases, 
the  crop  mortgaged  to  the  plaintiffs  had  a  potential  existence,  and  the  mortgage 
was  valid. 

1  Holroyd  r.  Marshall,  9  ,Jur.  N.  S.  213. 

In  \'an  Hoozer  r.  Cory,  .":V4  Barb.  10,  the  case  was  an  action  for  trespass,  for 
taking  and  carrying  away  a  quantity  of  cheese  alleged  to  be  the  property  of 
plaintiff.  The  defendant  ju.stitied  as  a  constable  under  judgment  and  execu- 
tion against  Smith;  on  the  trial  it  was  shown  that  plaintiff  leased  to  Smith  a 
dairy-farm,  with  tlie  cows,  fixtures,  and  dairy  implements. 

The  lease,  in  addition  to  the  usual  covenants,  contains  the  following  clause: 
•And  it  is  further  agreed  that  the  said  S3(lO  shall  be  paid,  etc.,  and  that  all  the 
produce  and  jjroducts  of  the  farm,  and  cows  that  shall  be  raised  and  made  each 


37  CROPS.  §  32 

crops  which  have  an  actual,  tangible  existence ;  they  may  be 
mortgaged,  and  when  matured,  or  severed  from  the  soil,  the 
lien  will  ripen  into  actual  property. 

§  32.  Notice  of  chattel  mortgage. — Chattel  mortgages, 
when  properly  executed  and  recorded  in  the  county  where  the 
property  is,  operate  as  constructive  notice,  both  in  and  out  of 
the  county,  of  the  lien  of  the  mortgagee ;  and  although  the 
property  mortgaged  may  be  in  its  nature  movable,  yet  the  lien 
may  be  asserted  against  subsequent  purchasers  in  or  out  of  the 
county,  upon  the  theory  that  the  record  of  the  mortgage  is  con- 
structive notice  to  those  who  buy.  The  policy  of  permitting 
the  lien  of  the  mortgagee  to  prevail  Avhere  the  property  is 
removed  out  of  the  county  where  the  lien  is  of  record,  has  been 
much  doubted,  but  as  to  that,  the  question  is  now  too  Avell  settled 
to  be  disturbed.  But  it  would  be  carrying  the  doctrine  to  an  un- 
reasonable extent  to  permit  liens  to  be  created  by  mortgage, 
either  in  or  out  of  the  county  where  the  parties  live,  or  the 
property  is  situated,  upon  property  not  in  esse,  and  a  purchaser 
should  not  be  required,  in  an  investigation  of  the  title  to  a  crop, 
to  go  back  prior  to  the  time  Avhen  the  property  first  had  any 
existence,  in  order  to  be  informed  of  the  right  of  the  party  in 
possession  to  sell. 

Could  this  be  otherwise,  it  does  not  appear  how  far  back  the 

year,  shall  be  and  remain  the  property  of  the  lessor  until  the  sum  of  $300,  rent 
of  each  of  said  years,  shall  be  paid." 

The  judge,  at  the  trial,  held  that,  at  the  time  of  the  levy  and  sale  by  defend- 
ant, the  iilaintiff  was  the  o-^Tier  of  the  cheese,  and  gave  judgment  accordingly, 
which,  on  appeal,  was  affirmed  upon  the  reasoning  that  "i^roperty  must  have 
an  actual  or  potential  existence,  in  order  to  be  the  subject  of  a  sale;  this  doc- 
trine is  so  well  settled  as  to  have  become  elementary;  but  a  thing  may  be  the 
subject  of  a  sale,  although  not  in  actual  existence,  if  it  has  a  potential  or  possi- 
ble existence,  as  the  product  or  increase  of  that  wliich  is  in  existence,  and  the 
right  to  it  when  it  shall  come  into  existence  is  a  present,  A'ested  right." 

In  California,  "Ah  Cliong,"  a  Chinanxan,  had  a  lease  of  land  whereon  he  was 
growing  a  crop  of  peanuts;  to  secure  a  debt,  he  gave  to  his  creditor  a  mort- 
gage on  the  land,  and  turned  over  to  him  the  possession  of  the  premises,  ujion  an 
agreement  that  the  creditor  should  harvest  the  crop,  and  pay  himself.  It  was 
held  that  when  a  debtor  gives  a  creditor  i)ossession  of  a  given  crop,  under  an 
agreement  that  the  creditor  shall  harvest  it,  and  api^ly  the  proceeds  to  the  pay- 
ment of  the  debt,  the  creditor  thereby  acquires  a  lien  on  the  crop  superior 
to  the  lien  acquired  by  another  creditor  who  receives  from  the  debtor  a  mortgage 
on  the  crop,  after  the  fir.st  creditor  has  taken  jiossession,  and  with  notice  of  the 
rights  of  the  first  creditor.     (Loveson  v.  GoUand  et.  al.  45  Cal.  8. ) 


§  33  CROPS.  38 

o^vner  of  land  might  not  mortgage  expected  crops,  and  by  record 
create  liens  on  what  might  never  exist  at  all.  ^ 

§  33.  Relation  of  homestead  exemption  to  growing 
crops.  —  Consideration  of  the  exemption  of  the  homestead 
from  seizure  and  forced  sale  on  process  against  the  owner  sug- 
gests the  question,  "  how  far  does  the  exemption  extend  —  are 
the  growing  crops  protected  ? "  If  they  are  to  he  treated  as 
realty,  the  exemption  extends  to  the  crop  ;  but  if  personal  prop- 
erty, they  may  be  taken,  notwithstanding  they  owe  their  exist- 
ence to  the  land,  which  is  not  liable. 

By  the  statutes  of  many  of  the  States,  a  homestead  of  speci- 
fied value  is  exempt  from  seizure  upon  legal  process ;  upon 
issue  raised  as  to  this  value,  the  Court  proceeds  to  set  apart  to 
the  head  of  the  family  enough  of  the  farm,  including  the  dwell- 
ing, to  amount  to  the  designated  value  ;  Avhere  no  such  issue  is 
presented,  the  general  provisions  of  the  laAv  constitute  such  a 
setting  apart  of  the  homestead  to  the  beneficiary.  This,  how- 
ever, is  not  a  sale :  it  is  but  a  change  in  the  character  of  the 
estate  which  the  homestead  claimant  has  in  the  land,  and  his 
status  as  to  the  crop  is  not  changed.  If  the  growing  crop  is  of 
such  a  character  as  to  be  liable  to  seizure,  the  fact  that  it  grows 
on  the  homestead  works  no  exemption,  and  this  whether  it  be 

1  r.arnard  v.  Eaton,  2  Cush.  295.  In  this  case,  it  was  held  that  a  mortgage 
could  not  apply  to  goods  not  in  existence,  or  not  capable  of  being  identified  at 
the  time  of  it's  execution.  (Munsell  v.  Carew,  2  Cush.  50;  Cortelew  v.  Lansing,  2 
Caine's  Cas.  200;  Wilson  v.  Little,  2  Cons.  44;>;  Bank,  Etc.  v.  Carey,  1  IJarb.  542.) 

"  A  mortgage  of  a  crop  to  be  raised  on  a  farm  dui-ing  a  cca-tain  term,  passes  no 
title  if  the  crop  was  not  sov»-n  when  the  mortgage  was  executed,  and  the  mortga- 
gee has  no  claim  against  a  iiurchaser  of  the  crop,  for  it  or  its  value."  (Hutchinson 
V.  Ford,  9  Ken.  r.l8. )  Probably  the  strongest  case  in  point  is  that  of  Comstock  v. 
Scales,  7  "Wis.  IGO.  I5y  the  Court — Cole,  J. :  "  The  defendant  in  error  claimed  the 
grain  in  controversy  by  virtue  of  a  chattel  mortgage  given  upon  it  about  the 
time  the  grain  was  sowed  and  planted,  and  before  the  sanu;  was  up  or  presented 
the  appearance  of  growing  grain,  and  the  Circuit  Court  instructed  the  jury,  upon 
this  point,  that  as  soon  as  the  grain  was  sown.  Hatch,  the  tenant,  could  mort- 
gage liis  half  of  the  crop,  and  that  the  same  would  be  held  by  the  mortgage. 
This  instruction  we  consider  erroneous.  In  our  opinion,  a  chattel  mortgage  can 
only  operate  upon  property  in  actual  existence  at  the  time  of  execution,  and  can- 
not lie  given,  as  was  attempted  to  be  done  in  this  case,  upon  a  crop  liefore  it  can 
be  said  to  be  in  <'xistence.  Since  the  subject-matter  of  a  chattel  mortgage  was 
not  in  esse  at  the  time  the  mortgage  was  executed,  there  was  nothing  for  it  to 
operate  upon."    (Otis  v.  Sill,  8  Barb.  102.) 


89  CROPS.  §§  34-35 

as  to  the  crop  growing  when  it  is  set  apart,  or  any  subsequent 
crop.^ 

§  34.  Statute  of  Frauds  in  sale  of  growing  crops. — In 

the  application  of  the  Statute  of  Frauds  to  contracts  affecting 
growing  crops,  the  same  difficuhies  are  encountered  which  have 
heretofore  been  considered  in  the  matter  of  the  sale,  mortgage 
of,  and  levy  upon  them,  and  now,  in  addition  thereto,  the 
special  restrictions  imposed  by  the  statute  should  be  regarded. 

Generally,  upon  the  question  of  whether  growing  crops  are 
real  or  personal  property,  if  by  the  sale  thereof  an  interest  in 
land  does  not  necessarily  pass,  the  English  authorities  have 
been  singularly  vacillating,  and  so  inconsistent  that  it  is  more 
difficult  to  harmonize  the  decisions  of  the  English  Courts,  and 
thence  deduce  a  rule,  than  it  has  been  to  arrive  at  conclusions 
from  the  more  practical  ones  rendered  by  the  American  Courts.^ 
It  must,  therefore,  be  left  with  the  reader  to  decide  upon  the 
relative  value  of  the  decisions  as  they  apply  to  such  special  cir- 
cumstances or  cases  as  he  may  have  under  review,  and  gather 
from  the  decisions  a  rule  applicable  thereto. 

§  35.   Ovrnership  of  crop  dependent  upon  title  to  soil. 

—  While  growing,  the  title  to  crops  can  only  be  determined  by 
showing  that  of  the  land  whereon  they  are,  and  this  title,  under 
the  statute,  cannot  be  proved  by  parol ;  ^  but  it  does  not  thence 
necessarily  follow  that,  the  title  to  the  growing  crop  being  at 
the  outset  confessed  to  be  in  the  vendor,  the  sale  of  the  crop  is 
incumbered  by  the  same  necessities  as  to  the  contract  of  sale 
being  in  writing,  mode  of  proof,  etc. 

1  Clements  v.  Lee,  47  Geo.  625.  In  this  case,  it  was  held  that  "ordinarily  the 
sale  of  land  carries  with  it  the  crop  then  growing  on  it ;  but  the  laying  aside  of 
the  homestead  is  not  exactly  a  sale.  It  is  the  appropriation  of  the  land  for  the 
benefit  of  the  family,  to  the  exclusion  of  the  debts  of  the  head,  and  does  not 
carry  with  it  the  crop  then  growing  on  the  land  (which  is  often  wortli  more  than 
the  land  itself)  to  the  exclusion  of  a  lien  granted  by  the  husband  on  such 
crop." 

2  Browne  on  Statute  of  Frauds,  Sec.  235. 

8  It  must  always  be  borne  in  mind  that  the  Statute  of  Frauds  does  not  declare 
a  certain  class  of  contracts  void,  but  simply  determines  that  they  sliall  be 
proved  in  a  certain  way,  by  writing,  evidence  of  payment  of  price,  delivery, 
etc.    The  statute  but  establishes  a  rule  of  evidence.    (Ibid,  Sec.  115.) 


§  36  CKors.  40 

In  Emerscn  v.  Ilcells,^  a  sale  of  turnips  growing  in  rows  or 
stitches  was  held  to  be  a  conveyance  of  an  interest  in  land,  and 
must  be  evidenced  by  writing. 

So,  in  Waddington  v.  Bristow,^  it  is  intimated  that  the  antici- 
pated product  of  a  lot  of  hop  roots,  from  Avhich  there  had  as 
yet  been  no  sprouts  above  gTound,  sold  as  hops  thereafter  to  be 
harvested  therefrom,  and  to  be  delivered  in  bales,  necessarily 
involved  tlie  transfer  of  an  interest  in  the  land,  and  must  be  in 
writing.  But  in  Warwick  v.  Bruce,^  a  case  in  the  Queen's  Bench, 
where  a  party  sold  all  of  a  certain  lot  of  potatoes  then  growing, 
it  was  decided  that  no  interest  in  the  realty  Avas  involved ;  and 
so  in  divers  other  English  cases  this  contradiction  of  the  cases 
first  above  cited  occurs.^ 

The  right  to  enter  upon  the  land  to  gather  the  crop  does  not 
determine  the  character  of  the  contract  affecting  the  purchase 
of  it,  as  is  distinctly  stated  by  Holroyd,  J.,  in  Evans  v.  Eoberts,^ 
in  that  it  does  not  materially  differ  fit)m  an  ordinary  license  to 
the  purchaser  of  a  chattel  to  eater  upon  premises  to  remove  it. 
The  circumstance  that  the  crop  is  not  yet  mature  does  not  affect 
the  character  of  the  transaction  under  the  Statute  of  Frauds. 
Under  the  ruling  of  Lord  Ellenborough,  in  Warwick  v.  Bruce, 
it  made  no  diffei-cnce  whether,  at  the  time  of  the  sale,  the  pota- 
toes were  covered  with  earth  in  the  field,  or  in  a  box.  And  so 
the  cases  in  England,  passing  the  contradictions  above  noticed, 
indicate  an  approach  to  the  general  rule,  in  American  law 
measurably  settled  by  precedent,  that  growing  crops  may  be 
regarded  as  personalty  to  the  extent  that  is  requisite  to  give 
force  to  the  contract,  and  carry  out  the  intention  of  the  parties 
in  the  premises  where  the  intention  is  manifestly  to  so  dispose 
of  the  crop  as  to  give  to  the  purchaser  no  interest  in  the  land. 

§  36.  Greneral  propositions  as  to  disposal  of  grooving 
crops. — From  a  review  oi  the  whole  subject,  it  appears  that  this  is 
tiie  correct  rule  as  to  the  application  of  those  parts  of  the  Statute 

1  2  Taunt.  38. 

2  2  I  {OS.  &  Pull.  452. 
8  2  Maule  &  S.  205. 

■»  Evans  v.  lloberts,  5  Bam.  &  Cress.  829  ;  Smith  v.  Lirermoro,  0  ]5ara.  & 
Cress.  5G1  ;  Sainsberg  v  Matthews,  4  Slees.  &  "SVels.  343. 
6  5  Bam.  &  C.  829;  S.  C.  8  Dowl.  &  R.  Cll. 


41  CROPS.  §  37 

of  Frauds  wliicli  govern  contracts  of  tins  character.  "VYlierc  the 
intention  is  to  convey  a  mere  chattel  interest  in  the  crop,  the 
statute  does  not  affect  it ;  but  if  it  is  the  intention  to  give  to  the 
vendee  an  exclusive  right  to  the  land,  for  the  purpose  of  making 
a  profit  from  the  use  of  the  same,  it  is  affected  by  the  statute, 
and  must  be  in  writing,  although  it  be  true  that  nothing  but 
the  crop,  as  a  chattel,  Avill  finally  pass. 

"\Yhere  the  vendee  is  not  to  have  the  crop  until  it  is  harvested, 
notwithstanding  it  is  sold  before  it  is  severed,  and  even  while 
growing,  the  sale  need  not  be  in  writing ;  but  if  the  property  is 
to  pass  at  once,  and  he  is  to  be  the  owner  while  it  is  growing, 
then  he  has  the  use  of  the  land — has,  by  the  sale,  an  interest  in 
the  realty,  and  a  verbal  contract  to  that  effect  is  not  good.^ 

§  37.  Prima  vestura,  and  annual  crops. — The  distinction 
between  natural  products  and  the  results  from  agriculture  has 
been  adopted  in  New  York  as  being,  in  view  of  the  diflficulties 
presented,  a  desirable  starting  point  from  which  to  establish 
some  certain  rule  not  inconsistent  with  the  earlier  decisions.^ 

1  Browne  on  Stat,  of  Frauds,  Sec.  249.  It  is  to  some  extent  a  question  of  de- 
livery, and  to  tlie  date  when  the  crop  is  to  be  delivered ;  because,  as  held  in 
Foster  v.  Fletcher,  7  Monroe,  5M,  "  one  person  cannot  be  in  i)ossession  of  the 
land,  and  another  of  the  corn  growing  on  it" ;  and  if  it  is  agreed  that  the  proii- 
erty  is  to  vest  in  the  purchaser,  remain  at  his  risk,  etc.,  the  intention  to  convey 
an  interest  in  the  land  might  be  inferred. 

So  it  woidd  seem  that,  as  the  right  to  tlie  growing  crop  follows  the  right  of 
possession  of  the  land,  as  in  the  case  where  a  person  who  had  a  pre-emption 
right  to  a  parcel  of  the  public  domain,  which  right  was  to  expire  on  a  certain  day, 
sowed  grain,  which  he  knew  would  not  be  iit  to  cut  before  the  expiration  of  the 
time  within  which  he  might  iiurchase  the  land,  it  was  held  that  a  stranger,  who 
did  buy  the  land,  was  entitled  to  the  crop.  (Eosor  v.  QuUls,  4  Blackf .  286. )  By  a 
converse  of  reasoning,  it  might  be  true  that  a  right  to  the  possession  of  the  croi? 
entaUed  a  corresponding  interest  in  the  land. 

Tenants  have  been  j)revented  from  harvesting  their  crops  after  the  expiration 
of  the  terms  of  their  leases,  because  their  right  of  possession  of  the  land  had 
ceased,  and  this  has  been  decided  to  be  the  law,  whether  the  lease  was  for  money 
rent,  or  on  shares  in  the  crop.  (Demi  v.  Bossier,  1  Penn.  St.  224;  Templeman  v. 
Biddle,  1  Harring.  552.) 

"SVhitmarsh  v.  AValker,  1  Met.  313.  In  which  the  i:)laintiff  bought  of  defendant 
a  lot  of  mulberry  trees  while  growing  on  defendant's  land,  paid  a  small  sum, 
and  was  to  take  them  away,  and  when  he  did  so,  jiay  the  balance ;  no  "v\Titten 
contract  was  made;  it  was  held  that,  under  the  Statute  of  Frauds,  the  sale  was 
good  without  writing. 

So  in  Clafflin  v.  Carpenter,  4  Met.  580,  it  was  held  that  growing  timber  might 
be  sold  without  writing. 

2  Green  v.  Armstrong,  1  Denio,  550;  Warren  v.  Leland,  2  Id.  G13.  So,  also,  in 
Gibbs  V.  Benjanain,  45  Ver.  124. 


§  37  CROPS.  42 

The  case  of  Green  v.  Armstrong  was  upon  error  to  the 
Oneida  Common  Pleas,  Green  sued  Armstrong  for  the  breach 
of  a  verbal  contract,  made  in  January,  1838,  by  Avhich  defend- 
ant sold  to  plaintiff  a  lot  of  basswood  trees  standing  on  defend- 
ant's land,  plaintiff  to  have  the  privilege  of  cutting  and  carrying 
them  away  at  his  convenience,  within  twenty  years ;  and  the 
Court  held  that  an  agreement  for  the  sale  of  trees,  at  the  time 
growing  upon  the  land  of  the  vendor,  with  a  right  to  the  vendee 
to  enter  at  a  future  time  and  remove  them,  is  an  agreement  for 
sale  of  an  interest  in  lands,  and  must  be  in  writing. 

To  the  same  point  is  Putney  v.  Day,  ^  where,  in  New  Hamp- 
shire, the  same  ruling,  in  effect,  was  made. 

So,  also,  as  to  growing  trees,  is  the  rule  held  to  be  under  the 
statute  in  Vennont ;  and  this  distinction  between yV^c^ws  indus- 
ii'iales  and  the  natural  produce  of  the  soil  is  now  well  estab- 
lished and  generally  conceded.  ^ 

1  Putney  v.  Day,  6  X.  H.  430. 

2Chitty  on  Contracts,  270-71;  Jones  v.  Flint,  10  A.  &  E.  753;  Eodwell  v. 
Philips,  9  Mees.  &  Wei.  501,  505;  Crosby  v.  Wardswortli,  G  East,  G02;  Liford's 
Case,  11  Coke,  48, 


43  FERTILIZERS.  §§  38-39 


CHAPTER    rV. 

FERTILIZERS. 

§  38.  Geneml  rules  as  to  fertilizors. 

§  39.   Special  statutes  as  to  fertilizers. 

§  40.   State  laws  concerning  fertilizers. 

§  41.   Ownership  of  manure  made  on  a  farm. 

§  42.  English  rule  as  to  manure  on  a  farm. 

§  43.   Rule  in  America  jis  to  ownership  of  manure. 

§  44.   Title  to  manure,  as  between  executor  and  heir. 

§  45.   Title  to  manure  on  sale  of  farm. 

§  4G.   Title  to  manure,  as  between  landlord  and  tenant. 

§  47.   Usage  as  to  ownership  of  manure. 

§  48.   Exceptions  to  general  rules  as  to  ownership  of  manure. 

§  49.   The  i-ight  to  collect  sea-weed  for  manure. 

§  38.  The  law  upon  the  subject  of  fertilizers  has,  from  a 
(late  very  early  in  the  history  of  jurisprudence  in  England,  been  a 
subject  of  considerable  interest,  and  the  principles  involved 
have  received  judicial  consideration,  in  the  Courts  of  the  mother 
country,  to  an  extent  commensurate  with  the  importance  of 
agricultural  pursuits,  and  the  standard  of  excellence  to  which 
farming  has  there  attained. 

Of  late  years,  with  the  closer  husbandry  entailed  by  popula- 
tion becoming  more  dense,  and  the  value  of  manures  being 
established  by  scientific  and  practical  tests,  legislative  enact- 
ments and  judicial  construction  of  laws  upon  this  subject  ap- 
pear in  the  statutes,  and  decisions  of  the  Courts  of  several  of 
the  United  States. 

§  39.  Special  statutes  as  to  fertilizers  in  Alabama, 
Georgia,  Maryland,  and  New  Hampshire : 

In  Alabama,  an  "  inspector  of  fertilizers  "  is  appointed  In'  the 
go^'crnor ;  under  the  inspection  of  this  officer,  and  his  subal- 
terns, all  packages  of  commercial  or  prepared  manures  are 
stamped  in  a  manner  indicative  of  their  power  and  value,  and 


§  40  FERTILIZERS,  44 

none  can  be  sold  unless  so  inspected  and  stamped,  -vvitliont  vio- 
lating the  law  and  incurring  a  penalty  of  $1,000,^ 

Georo-ia  has  a  statute  resemblino;  that  of  Alabama  ;  the' State 
chemist,  appointed  by  the  governor,  is  also  "  inspector  of  fei'- 
tilizcrs,"  and  all  imported  and  manufactured  fertilizers  must  be 
by  him  inspected  and  stamped,  so  as  to  indicate  their  character, 
value,  etc.;  and  any  person  who  shall  sell  such  merchandise  un- 
stam])ed  is  guilty  of  misdemeanor.^ 

In  Maryland,  a  similar  officer  has  like  duties,  and  he  also  must 
give  analyses  of  manufactured,  "  manipulated,  or  imported  ma- 
nures," and  each  package  offered  for  sale  must  have  attached 
thereto  printed  or  stamped  labels,  truthfully  showing  the  char- 
acter and  value  of  the  article,  the  weight  of  each  package,  with 
the  vendor's  name  and  place  of  business. 

If  the  article  proves  false  to  label,  the  buyer  may  recover  the 
price  paid,  the  seller  is  liable  to  indictment,  and  no  agreement 
between  the  buyer  and  seller  can  exempt  the  latter  from  indict- 
ment for  violation  of  these  provisions.^ 

A  supplemental  act  permits  the  grower  of  crops  to  pledge  the 
crop,  where  the  manures  have  been  bought  on  credit,  for  the 
payment  of  the  debt  so  created,  the  lien  to  have  precedence 
over  all  others  except  that  of  the  landlord  for  rent.^ 

New  Hampshire  has  a  law  providing  that  dealers  in  "  com- 
mercial "  or  "  manufactured  "  manures  shall  label  or  otherwise 
mark  each  package  so  as  truthfully  to  show  what  it  is,  its  weight 
and  strength,  and  any  violation  of  law  renders  the  offender  liable 
to  pay  a  fine  of  $20  for  the  first  and  §?40  for  each  subsequent 
offense.^ 

§  40.   State   laws   upon    the    subject   of    fertilisers. — 

Xcjrtli  Carolina  has  a  statute  prescribing  that  every  ])ackagc  of 
"commercial  manure"  or  "manufactured  guano"  shall  be 
stamped  as  by  the  laws  provided,  and  also  that  the  vendor 
shall  furnish  to  the  purchaser  truthful  chemical  analyses  of  the 
contents  of  the  packages. 

1  Acts  of  Alabama,  1870-71,  p.  G8. 

2  Code  of  (ioorgia,  187.'},  p.  270. 

3  Maryland  Code,  Supplement  of  1870,  p.  85. 
■•Il.id,  p.  84. 

''  Law.s  of  New  Hampshire,  18(;7-71,  p.  285. 


45  FERTILIZERS.  §  41 

Persons  dcalina;  in  fcrtlUzcrs  not  marked  as  above  required, 
or  wlio  fraudulently  affix  any  mark  or  label  wliieh  untruthfully 
states  the  contents  and  character  of  the  package  sold,  forfeit  such 
manures,  and  render  themselves  i>ersonally  liable  for  damages. 
Deficiency  in  any  of  the  ingredients  indicated  by  the  mark  or 
label  is  made  a  bar  to  the  recovery  of  the  debt  created  Ijy  the 
purchase  of  the  manure. 

Any  person,  instituting  suit,  can  have  an  analysis  made  by 
the  State  geologist,  and  his  certificate  is  presumptive  evidence 
of  the  ingredients  of  the  article  sold.  Several  persons  may 
unite  in  one  such  suit.^ 

Virginia,  by  statute,  provides  for  the  proper  marking  of  all 
packages  of  fertilizers  with  the  name  of  the  manufacturer  or 
dealer,  his  place  of  business,  with  the  v/eight,  value,  and  analy- 
sis of  the  contents  of  each  package  offered  for  sale. 

For  breaking  this  law  a  penalty  is  imposed  of  one  hundred 
dollars  on  the  first  and  two  hundred  dollars  for  each  subsequent 
offense,  and  the  vendee  may  recover  the  price  paid.^ 

Such  are  the  ^-eneral  features  of  the  laws  of  States  where 
the  trade  or  business  of  dealing  in  fertilizers  is  governed  by 
special  statutes.  In  some  States  there  are  also  restrictions  upon 
non-residents  from  gathering,  on  the  sea-shore,  fish  for  manures, 
to  be  carried  away,  but  such  laws  are  local  and  of  but  little 
general  value. 

§  41.  Manure  made  on  land  belongs  to  owner  of  the 
soil.  —  Manure  made  upon  the  land,  in  the  course  of  husl^andry, 
becomes  a  part  of  the  farm,  and  is  generally  subject  to  the  laws 
governing  real  estate.  In  England,  from  the  complicated  rela- 
tion of  landlord  and  tenant  under  agricultural  leases,  exceptions 
to  this  rule,  by  local  customs  and  peculiar  circumstances,  have  so 
often  occurred  that  the  rule  sometimes  appears  to  be  lost;^  but, 

1  Public  Laws  of  N".  Car.  1871-72,  p.  3GG-7. 

2  Acts  of  Assembly  of  Virginia,  1870-71,  p.  294. 

3  2  Kent's  Com.  348,  Note  1,  in  -which  the  distingnishcd  writer  says:  "It 
would  seem  to  be  the  law  in  England  for  the  outgoing  tenant  to  sell  or  take 
away  the  manure  (Roberts  v.  Barker,  1  Cr.  &  M.  809).  A  critical  examination 
of  the  case  cited  develops  the  fact  that  the  decision  turns  upon  the  effect  of  an 
express  stipulation  where  there  is  a  custom  which  otherwise  controls.  A  tenant 
held  under  a  lease  which  contained  an  express  agreement  by  which  he  coven- 
anted not  to  sell  or  take  away  any  of  the  manure  in  the  fold,  but  should  leave 


§  42  TERTILIZERS.  46 

notwithstanding  tlic  multitude  of  qualifications  and  exceptions 
which  cover  it,  the  rule  can  be  found  underlyinf]c  them. 

§  42.   English  rule  as  to  manure  made  on  the  farm. — 

By  the  Englifih  authorities,  it  is  generally  conceded  that  an  agree- 
ment to  cultivate  lands  in  a  husbandlike  manner  is  an  oljligation 
not  to  carry  away  any  of  the  straw,  dnng,  or  compost,  but  to 
use  them  for  enriching  the  soil ;  ^  and  that,  although  under  local 
usage  the  contrary  might  prevail  as  a  custom,  the  general  rule 
of  law  is  svich  that  the  manure  should  remain  upon,  and  it  is  a 
part  of,  the  realty.  But  the  converse  of  this  proposition  has 
sometimes  been  held  to  be  true  :  that  there  was  no  rule  whatever 
in  the  premises,  and  that  local  custom  controlled  entirely.  ^  But 
the  custom  must  be  so  well  established  as  to  cause  the  presump- 
tion that  the  contracting  parties  knew  of  the  local  usage,  had  it 
in  mind  in  making  the  contract,  and  are  therefore  deemed  to 
have  entered  into  the  relation  with  reference  to  the  subject- 
matter  upon  consideration,  based  upon  the  custom. 

it  for  the  landlord  or  the  succeeding  tenant ;  but  there  was  in  the  lease  no  stip- 
ulation as  to  the  tenant  being  jiaid  foi*  the  manure. 

By  the  custom  of  the  country,  the  tenant  would  have  been  bound  not  to  sell 
or  take  away  the  manure,  but,  leaving  the  last  year's  manure  on  the  premises, 
he  would  have  been  entitled  to  receive  pay  for  its  A-alue. 

It  was  held  that  an  express  agreement  as  to  leaving  the  manure  had  been 
inserted  in  the  MTitten  lease  ;  that  circumstances  evidenced  tliat  the  minds  of 
the  contracting  parties  had  met,  and  tlie  result  was  the  written  stipulation 
which,  perforce,  proved  that  no  reliance  was  placed  upon  tlie  custom  ;  that, 
therefore,  the  custom  not  being  in  their  minds,  it  formed  no  part  of  the  contract, 
and  should  be  disregarded  ;  no  pay  was  accorded  for  the  manure. 

Hence  it  would  seem  that  tlie  local  custom,  rather  tlian  tlie  law,  gave  the 
manure  to  the  tenant;  and,  granted  the  premise  that  a  custom  was  requisite  to 
give  to  liim  tlie  manure,  the  law,  apart  from  the  custom,  left  the  title  with  the 
land. 

But  Loniar  v.  Armitage  (Holt's  cases  of  nisi  j)rius,  VM)  directly  controverts 
this  case  of  Roberts  v.  Barker,  and  decides  that  where  a  A\Titten  agreement  of 
lease,  upon  a  matter  of  this  character  involving  a  custom,  does  not  in  terms 
exclude  the  custom,  such  custom  will  prevail  and  rcanain  in  effect. 

In  Webb  v.  Plummcr,  2  B.  &  A.  74G,  the  doctrine  of  Koberts  v.  Barker  is  sus- 
tained, and  Leniar  v.  Armitage  commented  upon  witliout  approval. 

1  Powlcy  -•.  M'alkor,  5  I).  &  E.  .'JT.S. 

-  In  Hutton  r.  Warren,  1 ISI.  &  "\V.  4G6,  it  is  said  that  the  obligation  to  expend 
manure,  and  right  to  remove  it,  must,  in  every  case  where  there  is  no  express 
contract,  be  governed  by  the  custom  of  the  country;  there  is  no  rule  of  law  on 
the  subj(;ct  irrespective  of  such  custom;  "farmers  are  more  fit  than  lawyers  to 
decide  such  a  question." 


47  rERTILTZERS.  §  43 

§  43,   Rule  in  America  as  to  ownership  of  manure. — 

In  America,  it  is  reasonably  -well  settled  that  the  manure  made 
on  the  farm  is  a  part  of  the  realty,  and,  upon  a  sale  of  the  land, 
passes  to  the  vendee  under  the  deed. 

The  case  of  Kittredge  v.  Woods  ^  is  not  only  a  leading  one, 
but  states  the  doctrine  now  prevailing  throughout  the  United 
States,  with  certain  rare  exceptions. 

The  action  was  trespass,  for  breaking  and  entering  plaintiff's 
close  and  carrying  away  forty  loads  of  manure.  It  appeared, 
on  the  trial,  that  the  plaintiff  was  tenant  of  the  farm,  where  the 
manure  was  made  by  cattle  about  the  farm,  in  1823.  In  1824, 
plaintiff  purchased  one-half  of  the  farm,  and  defendant  the  other 
half,  and  these  parties  held  it  in  common  until  the  6th  of  April, 
1824,  Avlien  they  divided,  and  defendant  conveyed  to  plaintiff 
all  of  his  interest  in  the  part  of  the  farm  where  the  said  manure 
was.  Afterward,  defendant  entered  and  took  away  one-half  of 
the  manure,  and  thereupon  the  controversy  arose,  and  the  sole 
question  involved  was,  "  whether,  when  land  is  sold  and  con- 
veyed without  any  reservation,  manure  lying  upon  it  goes  to 
vendee  with  the  land  ?  " 

The  learned  judge  who  wrote  the  opinion  (Richardson,  C. 
J.)  says:  "As  we  find  no  adjudged  case  in  which  this  question 
has  been  directly  settled,  we  shall,  in  order  to  avail  ourselves  of 
the  light  which  analogous  cases  offer,  take  a  broader  view  of 
the  subject  than  the  relation  between  the  vendor  and  vendee 
presents.  Many  things  which  are  not  affixed  to  the  freehold 
go  to  the  heir  as  appurtenances  to  the  inheritance.  Thus,  it  is 
said  that  young  doves  in  a  dove-house,  not  able  to  fly,  belong  to 
the  executor.  But  the  old  doves  go,  with  the  dove-house,  to 
the  heir.  (Wentworth,  57;  Godolphin,  116.)  So,  keys  of 
doors  go  to  the  heir,  (Wentworth,  62)  and  chests  containing  the 
title-deeds  of  the  inheritance  (Wentworth,  64). 

"  And  we  are  inclined  to  think  that  the  principles  of  these  de- 
cisions will  give  to  the  heir  the  manure  which  may  have  been 
carried  and  left  upon  the  field  in  heaps  for  dressing,  or  which 
may  be  left  lying  in  heaps  about  the  barn,  upon  the  land. 

"  It  is  well  settled  that  when  land  is  sold,  whatever  corn  is 

1  3  N.  H.  503;  Lee  v.  Eisdon,  7  Taunt.  191;  Elwes  v.  Mawe,  3  East,  38. 


§  44  FEllTILIZETJS,  48 

upon  the  land  passes,  and  avc  are  of  the  opinion  that  all  manure, 
whether  it  be  in  heaps  about  barns,  or  in  other  places  upon  the 
hind,  <>-oos  -witli  tlic  land  to  the  vendee." 

§  44.  Title  to  manure  as  between  executor  and  heirs- 
at-law. — One  of  the  most  common  cases  where  a  question  of 
this  kind  may  arise,  is  between  executors  or  administrators  on 
the  one  point,  and  heirs-at-law  on  the  other.  It  is  said,  in  the 
English  books,  that  the  line,  in  this  instance,  is  drawn  more 
closely  there  than  in  any  other.  ^  And  it  seems  to  have  been 
settled  that  whatever  has  been  in  any  way  attached  to  the  free- 
hold for  the  benefit  of  the  inheritance,  and  is  necessary  to  its 
enjoyment,  shall  go  to  the  heir. 

Thus,  in  LaAvton  v.  Salmon,  1  H.  Bl.  259,  note,  it  Avas  decided 
that  salt  pans,  used  in  the  manufacture  of  salt,  although  they 
might  be  removed  without  injury  to  the  building,  should  go  to 
the  heir. 

Many  things  Avhich  are  not  affixed  to  the  freehold  go  to  the 
heir  as  appurtenances  to  the  inheritance.  Thus,  it  is  said  that 
young  doves  in  a  dove-house,  not  able  to  fly,  belong  to  the  ex- 
ecutor, but  the  old  doves  go  with  the  dove-house  to  the  heir. 
So  keys  of  doors  go  to  the  heir,  and  chests  containing  the  title- 
deeds  to  the  property  pass  to  the  heir.  And  so,  by  analogy,  it 
appears  that  the  principles  of  these  decisions  will  give  to  the 
heir  the  manure  which  has  been  carried  and  left  upon  the 
helds  in  heaps  for  dressing,  or  Avhich  may  be  left  lying  in  heaps 
about  barns  upon  the  land.^     Such  Avas  the  conclusion  arrived 

1  In  these  cases,  the  contest  arose  as  to  certain  fixtures,  whether  they  went  to 
the  heirs  or  executor.  It  was  held  that  the  fixtures  necessarily  went  to  the  heir, 
because  they  were  of  the  realty. 

It  was  said  that  the  right  between  landlord  and  tenant  did  not  altogether 
depend  upon  this  principle.  Many  articles  which,  though  originally  chattels, 
might,  when  attached  by  the  tenant  to  the  freehold,  cease  to  be  sucli  by  becom- 
ing part  of  the  freehold;  and  thougli  it  is  in  his  power  to  reduce  them  to  iicrson- 
alty  by  removing  them  during  his  term,  tliey  remain,  so  long  as  affixed,  a  part 
of  tlie  realty.     (Strong  v.  Doyle,  110  Mass.  93.) 

"  ^Manure  made  in  tlie  course  of  husbandry,  upon  a  farm,  is  so  attached  to  and 
connected  with  the  realty,  that,  in  the  absence  of  any  express  stipulation  to  the 
contrary,  it  passes  as  apimrtenant  to  it."     (Fay  v.  Mazzy,  13  Gray,  53.) 

-  Fencing  materials  on  a  farm,  part  of  the  freehold,  and  if  tliey  are  temporarily 
down  or  detached,  without  any  intent  on  the  part  of  the  o^\^ler  to  put  the  fenc- 
ing materials  to  another  use,  they  still  continue  to  be  regarded  as  fixtures. 


49  FERTILIZERS.  §  44 

at  in  tills  case,  and  It  has  been  agreed  with  In  similar  cases 
where  they  have  arisen  in  the  other  States,  except  the  instances 
and  to  the  extent  hereinafter  noticed. 

In  INIassachusetts,^  it  was  held  that  manure  from  the  barn- 
yard of  the  homestead  of  an  Intestate,  standing  in  a  pile  on  the 
land,  although  not  broken  nor  rotten,  and  not  in  a  fit  condition 
for  Incorporation  with  the  soil,  is  not  assets  in  the  hands  of  the 
administratrix,  and  she  is  not  chargeable  therewith  as  part  of 
the  personal  estate. 

Manure  made  in  the  course  of  husbandry  upon  a  farm  is  so 
attached  to  and  connected  with  the  realty,  that,  in  the  absence 
of  any  express  stipulation  to  the  contrary,  it  passes  as  an  ap- 
purtenant to  It. 

The  reason  of  the  rule  Is,  that  it  is  for  the  benefit  of  agri- 
culture that  manure,  which  Is  usually  produced  from  the  drop- 
pings of  cattle  or  sAvIne  fed  upon  the  products  of  the  farm,  and 
composed  with  the  earth  or  vegetable  matter  taken  from  the 
soil,  and  the  frequent  application  of  which  to  the  ground  is  so 

(Goodrich  v.  Jones,  2  Hill,  143,  and  to  the  same  point.  Walker  v.  Sherman,  20 
Wend.  G39.) 

So,  also,  it  has  been  held,  where  hop-poles  had  been  used  the  preceding  year, 
but,  the  crop  being  harvested,  the  poles  had  been  piled  up  on  the  farm  for  use 
the  next  year,  that  the  poles,  though  wholly  out  of  the  ground,  and  in  jiiles, 
were  in  effect  fixtures,  and  not  subject  to  be  treated  as  jiersonal  property. 
(Bishop  V.  Bishop,  11  N.  Y.  123.)    One  of  the  judges  dissented. 

1  Fay  V.  Mazzy,  13  Gray,  .53. 

The  ground  on  which  the  learned  judge  (Hoar)  places  this  rule  is  that  the  ma- 
nure, having  been  originally  from  the  soil,  should,  to  keep  the  estate  in  equal- 
ized value,  return  to  it  the  enrichment  of  the  droppings,  does  not  appear  to  have 
been  always  the  predicate  of  the  proposition.  In  an  old  English  case,  Hindle 
V.  PoUett,  G  Meeson  &  Welsby,  529,  a  tenant  had  stipulated  that  he  would  put 
and  spread  all  the  manure  and  comjjost  then  collected  on  the  farm,  and  that  he 
would  not  take  away  or  sell  any  such  from  the  premises.  The  tenant  was  at- 
tached, and  sold  out.  His  neighbor  bought  two  of  his  cows,  and,  for  conve- 
nience, left  them  in  a  pen  on  the  land  ;  brought  from  other  i)remises  hay,  fed 
them  there  for  a  coviple  of  days,  and  took  away  the  manure — the  droi^pings  from 
the  cows  which  he  had  bought,  and  which  were  from  his  feed.  Held,  that  the 
manure  belonged  to  the  landlord,  the  owner  of  the  soil,  and  that  to  take  it  away 
was  a  breach  of  the  covenant. 

Lord  Abinger  says  :  "The  question  is  not  by  whose  provender  the  manure  was 
produced,  but  whether  it  was  made  on  the  farm.  Now,  sufipose  the  farm  was 
near  some  place  where  a  large  fair  was  held,  and  it  was  convenient  to  the  farmer 
to  take  in  the  cattle  brought  to  the  fair  for  several  hours,  would  he  have  a  right 
to  remove  the  manure  made  by  these  cattle  ?  Would  not  all  their  droppings  be 
manure  made  on  the  farm  ?  Clearly  so.  This  is  manure  made  on  the  farm  — 
the  produce  of  the  farm — and  must  be  so  regarded." 

Farm — 4. 


§§  45-6  FEKTILIZERS.  60 

essential  to  its  successful  cultivation,  should  be  retained  for  use 
upon  the  land. 

Such  is  unquestionably  the  general  usage  and  understanding, 
and  a  different  rule  would  give  rise  to  many  difficult  and  em- 
barrassing questions. 

§  45.   On  sale  of  farm,  manure  goes  -with  the  land. — 

Upon  a  sale  (jf  the  realty,  the  manure  upon  the  farm  goes  with 
the  land.  Such  was  the  reasoning  in  Goodrich  v.  Jones,^  in 
which  case  Jones  contracted  to  sell  a  farm  to  Goodrich  for  a 
money  consideration,  payable  April  20th,  1836.  Under  this 
agreement,  Jones,  by  Goodrich's  consent,  conveyed  a  j^art  of 
the  farm  to  one  Vose,  and  the  residue  to  Goodrich,  who  claimed 
and  converted  to  his  own  use  certain  fence-boards  lying  on 
Vose's  part,  and  certain  manure  in  the  barn-yard  on  his  own 
part. 

This  was  after  the  deeds  were  executed.  At  the  time  of  the 
execution  of  the  deed  to  Vose,  the  boards  were  on  the  premises  : 
they  had  all  been  in  fences  on  that  part,  and  some  still  remained 
so,  though  a  good  many  were  displaced,  some  let  do^vn,  and 
some  blown  down.  The  manure  lay  in  the  barn-yard,  on  Good- 
rich's part,  where  it  had  been  accumulating  for  a  long  time.  The 
cortversion  of  it  by  Goodrich  Avas  proved. 

The  Cfuestion  was  squarely  before  the  Court  as  to  the  charac- 
ter of  the  property  in  the  fence-boards  and  manure.  It  was 
held  that  both  the  fence-boards,  temporarily  detached,  and  the 
manure,  were  part  of  the  freehold,  and  passed  by  the  deed. 

The  manure  belongs  to  the  farm  whereon  it  is  made.  This  is 
in  respect  to  the  benefit  of  the  farm  and  the  common  cause  of 
husbandry.  It  makes  a  part  of  the  freehold,  and  passes  to  the 
vendee. 

§  46.  Ownership  of  manure  as  between  landlord  and 
tenant. — As  between  landlord  and  tenant  the  manure  belongs  to 
the  former,  unless  there  is  an  express  stipulation  to  the  contrary. 
If  a  farm  is  leased  for  agricultural  pui'poses,  there  is  raised 
between  the  parties  to  the  transaction  a  contract  by  implication, 
where  such,  in  terms,  is  not  in  the  lease,  that  the  tenant,  on  his 

1  2  urn,  142. 


61  FERTILIZERS.  §  47 

part,  will  conduct  his  operations  and  care  for  the  farm  in  a  work- 
manlike manner  in  accordance  with  good  husbandry. 

Such  a  covenant,  from  the  nature  of  things,  implies  that  tlu^ 
manure  .should  be  used  in  the  farming  operations  ;  every  tenant 
is  bound  to  cultivate  his  farm  in  a  husbandmanlike  manner,  and 
to  consume  thereon  the  manure  produced  on  it.  Tliis  is  an  en- 
pao-ement  that  arises  out  of  the  letting,  and  which  the  tenant 
cannot  avoid  without  violating  his  contract ;  ^  and  at  the  end  of 
the  term  such  manure  as  remains  on  the  premises  the  tenant  has 
no  property  in ;  he  has  no  more  right  to  remove  it  before  the  ex- 
piration of  his  term,  or  to  dispose  of  it  to  others,  than  he  has  to 
remove  or  dispcfce  of  any  fixture  belonging  to  the  farm. 

§  47.  Usage  as  to  title  to  manure. — Implied  contracts  of 
the  character  above  indicated,  however,  are  liable  to  meet  with 
€xcc]itions  and  to  succumb  to  the  rule  that  local  usage  and  Avell 
established  custom  may  waive  the  implication,  and  possibly  not 
only  destroy  it,  but  raise  another  contract  the  reverse  of  that 
.suggested  above. 

Parties  contractino-  to  do  a  certain  business,  or  enter  into  re- 
lations  with  reference  to  well  defined  pursuits  in  a  neighboi-hood 
devoted  to  occupations  of  a  like  character,  such  as  husbandry, 
Avhere  a  large  class  of  the  people  are  engaged  therein,  may  well 
be  supposed  to  have  made  their  engagement  with  a  view  to  do 
the  business  in  the  way  which  is  there  customary ;  and  if  there 
is  a  well  defined  usage  as  to  any  particular  matter,  such,  for 
instance,  as  the  mode  of  cultivation,  or  use  of  manure,  such 
custom  would  control  and  characterize  the  implied  contract.^ 

1  INIifldlebrook  v.  Corwin,  15  "Wend.  1G9 ;  Taylor's  Land  and  Ten.  541  et  snq. ; 
Daniels  v.  Pond,  21  Tick.  367. 

2  Parsons  on  Contracts,  p.  537,  Vol.  2  ;  Strong  v.  Doyle,  110  IMass.  02.  In  this 
case,  -svliile  defendant  was  negotiating  for  the  purchase  of  plaintiff's  farm,  the 
parties  made  a  distinct  oral  agreement  for  bnying  the  maniire  on  the  farm,  the 
plaintiff  agreeing  to  put  up  the  manure  at  auction  for  sale  and  the  defendant  to 
take  it  if  he  was  the  highest  hidder.  The  plaintiff  conveyed  the  farm  to  defend- 
ant and  put  up  the  manure  for  sale  at  auction,  hut  the  defendant  forbade  the 
sale,  claimed  the  manure  as  his  own,  and  spread  it  upon  the  land.  Held,  a  con- 
version of  plaintiff's  property.  (Collender  u.  Dinsmore,  55  N.  Y.  200;  Cash  v. 
Hinkle,  3G  Iowa,  628.)  "A  custom  cannot  be  set  up  against  the  clear  intention  of 
the  jiarties  to  a  contract  as  expressed  therein,  but  the  words  of  a  contract  must 
be  construed  in  reference  to  a  custom  affecting  the  subject  and  known  to  the 
parties,  that  the  true  intention  maybe  ascertained."  (2  Parsons  on  Cont.  Sec.  9; 
Iluandskoff  v.  Brett,  14  Iowa,  102.) 


§  48  FERTILIZEKS.  52 

E^'on  in  written  leases,  where  nothing  is  said  upon  a  topic  in 
which  is  involved  a  Avell  established  usage,  the  same  rule  appeal's.^ 

The  object  of  language  is  to  express  the  meaning  of  the  j)ar- 
ties,  and  words  have  frequently  a  local  and  special  significance ; 
it  is  in  the  sense  in  which  they  are  used  that,  to  give  effect  to 
the  agreement,  they  must  be  understood,  and  so  the  true  condi- 
tion of  the  minds  of  the  contractors  is  an-ived  at  by  considering 
them  to  have  had  in  view  the  custom  in  point  and  Avith  which 
they  were  familiar. 

§  48.  Exceptions  to  general  rule  as  to  manure.  —  In 

North  Carolina,  the  converse  of  the  general  rule  that  manure  on 
the  farm  is  part  of  the  freehold  has  been  held  to  be  law.^ 
In  that  State  occurred  a  case  in  which  there  v^as  neither  custom 
nor  agreement :  the  tenant,  the  plaintiff,  purchased  the  land  in 
1841 :  the  defendant  had  been  tenant  of  the  former  OAvners,  and 
liefore  the  date  of  the  plaintiff's  purchase  had  raked  into  piles 
the  manure  Avliich  had  been  made  on  the  place  dui'ing  his  ten- 
ancy, and  especially  that  which  was  taken  from  the  pig-pen. 

After  the  purchase  of  the  land  by  plaintiff,  the  defendant 
remained  on  the  farm,  removed  the  manure,  and  then  delivered 
the  premises  to  plaintiff,  and  plaintiff  sued  for  the  value  of  the 
manure.  The  Court  held  that  the  outgoing  tenant,  where  there 
is  no  covenant  or  custom  to  the  contrary,  has  a  right  to  all  the 
manure  made  while  he  is  on  the  farm,  and  that  it  was  his  per- 
sonal property. 

This  decision  is,  however,  so  far  out  of  line  with  its  fellows 
that  it  should  not  be  regarded  as  law  :  even  the  cases  which,  in 
the  report  of  this  one,  are  cited,  upon  analysis  do  not  bear  the 
construction  ascribed  to  them,  and  the  safer  course  is  to  disre- 
gard tins  case ;  such  is  also  the  opinion  of  a  distinguished  writer 
on  the  subject  of  landlord  and  tenant.^ 

1  "Every  demise  Tjetween  landlord  and  tenant,  in  respect  to  •u-liicli  the  parties 
are  silent,  may  be  fairly  open  to  explanation  by  the  general  usage  and  custom 
of  the  countrj%  or  the  distiict  where  the  land  lies."  (Van  Ness  v.  Paskara,  2 
Pet.  137.) 

-  Smithwick  v.  Ellison,  2  Ired.  320. 

3  Taylor's  Landlord  and  Tenant,  541,  in  -wliich  the  author,  after  stating  the  law 
in  accordance  with  the  text,  says: 

"A  diflercnt  rule,  however,  has  been  laid  down  in  South  [Xorth]  Carolina, 
where  it  is  held  that  a  tenant  who  is  about  to  remove  has  a  right,  if  there  is  no 


53  FERTILIZERS.  §  49 

§  49.  The  right  to  collect  sea-'weed  for  manure  appears 
to  bo  in  tlic  ])ul)li('  so  far  as  it  may  l)c;  found  upon  the  strip  of 
land  lying  between  high  and  low-water  mark.  Such  would 
seem  to  be  the  inevitable  result  of  the;  jiublic  ownership  of  this 
belt  of  land  which  is  covered  and  left  bare  by  the  advancing 
and  receding  tides.  In  the  sea-weed  there  is  no  title  luitil  it  is 
somewhere  deposited.  In  a  state  of  nature,  fast  or  floating,  it 
is  the  projjcrty  of  no  one.  It  has  never  been  subjected  to  the 
law  of  "prinle  occupancy,"  which  is  the  foundation  of  all  title. 
It  has  grown  u])on  no  man's  land  ;  it  results  from  no  person's 
labor,  care,  or  skill,  and  has  been  reduced  to  possession  by  no 
one.  Like  wreck,  or  treasure  trove,  or  animals  /erce  naturm^  its 
title  vests  in  him  who  first  takes  possession  of  it.^  Tliis  posses- 
sion is  deemed  to  be  taken  by  the  owner  of  the  land  wdien  it 
is  left  upon  that  part  of  the  shore  which  belongs  to  the  riparian 
proprietor,  somewhat  upon  the  principle  by  which  title  is  ac- 
quired to  soil  made  by  "■accretion"  or  "alluvion." 

From  the  authorities,  it  is  not  clear  how  title  to  sea-weed  is 
thus  obtained.  The  o^^^lership  of  personal  property  may  be  ac- 
quired by  what,  in  law,  is  called  accession  ;  but,  to  acquire  title 
by  accession,  the  accessory  thing  must  be  united  to  the  princi- 
pal, so  as  to  constitute  part  and  parcel  of  it,  and  sea-weed  cannot 
be  sti'ictly  considered  within  this  definition,  for  its  sole  value  is 
as  manure,  generally  to  be  used  at  some  place  other  than  where 
first  deposited. 

But  by  whatever  trains  of  reasoning  the  rule  has  been  estab- 
lished, it  has  long  been  the  law  that  sea-weed  cast  upon  soil  be- 
longing to  a  riparian  proprietor  vests  in  him,  because  of  the 
ownership  of  the  soil.^     The  right  to  the  sea-weed  accumula- 

covenant  or  custom  to  the  contrary,  to  all  the  manure  made  by  him  on  the 
farm  ;  that  it  is  his  i^ersonal  property,  and  he  may  remove  it  as  such  ;  but  this 
case  is  clearly  at  variance  with  all  other  American  decisions  on  the  subject." 

1  2  Bla.  Com.  401  ;  Haslem  v.  Lockwood,  3-1  Conn.  500. 

2  Church  V.  Jileeker,  34  Conn.  428  ;  Emans  v.  Trumbull,  2  Johns.  314  ;  Thillips 
V.  Rhodes,  7  Met.  322. 

"  The  right  of  a  proprietor  bounding  upon  the  sea  terminates  at  ordinary  low- 
water  mark,  and  he  has  the  right  to  sea-weed  cast  by  extraordinary  floods  above 
ordinary  high-water  mark.  As  owner  of  the  soil,  he  is  constructively  the  first 
occupant  of  it.  But  sea-weed  cast  and  left  ujion  the  shore — that  is,  between  or- 
dinary high  and  low-water  mark — belongs  to  the  public,  and  may  be  laTvfully 
appropriated  by  the  first  occupant."    (Mather  v.  Chapman,  40  Conn.  382.) 


§  49  FEr.TILIZERS.  54 

tion  is  of  tlio  character  of  'profits,  a  prendre,  or  those  taken  and 
enjoyed  by  the  mere  act  of  the  proprietor  himself ;  and  the  right 
to  so  take  depends  upon  the  right  which  the  party  has  upon  the 
lands  where  the  property  is  found,  and  this  again  depends  upon 
the  title  to  the  soil. 

With  the  exception  of  the  States  of  Massachusetts,  INIaine, 
and  Xew  Hampshire,  the  ownei^hip  in  the  soil  of  the  riparian 
proprietor  stops  at  high-water  mark.  In  those  States,  by  a  pro- 
vision and  ordinance  in  1641,  passed  by  the  colonial  legislature 
of  the  Massachusetts  colony,  the  fee  of  riparian  proprietors  was 
extended  one  hundred  feet  from  high-water  mark,  and  this  pro- 
vision has  been  accepted  as  the  law  in  the  three  States  above 
mentioned ;  but  they  are  exceptional  to  the  general  rule  that  the 
right  of  soil  of  owners  of  land  boimded  by  the  sea,  or  on  navi- 
gable rivers  where  the  tide  ebbs  and  flows,  extends  to  high- 
water  mark  ;  and  the  shore  below  common,  but  not  extraordi- 
nary, high-water  mark  belongs  to  the  State,  as  trustee  for  the 
public.^  This  last  may,  however,  be  sold  hj  the  State  to  an  in- 
dividual, and  by  prescription  title  may  be  acquired  to  it ;  and, 
when  so  acquired,  title  to  the  land  between  high  and  low-water 
mark  would  carry  with  it  the  right  to  sea-weed  deposited.^ 

1  3  Kent's  Com.  427. 

2  3  Kent's  Com.  427  ;  Gould  v.  Hudson  E.  E.  Co.  G  N.  Y.  522  ;  People  v.  Tibbitts, 
19  N.  Y  523  ;  Mather  v.  Chapman,  40  Conn.  396  ;  2  Bla.  Com.  292  ;  Church  v. 
Meeker,  34  Conn.  421 ;  Peck  v.  Lockwood,  5  Day,  22  ;  Hale  de  Jure  INIaris,  Chap. 
6  ;  2  Bla.  Com.  401  ;  Haslem  v.  Lockwood,  37  Conn.  500. 


Part  II. 


DAMAGES. 


57  INJURY    BY    FIRE.  §  50 


CHAPTER  V. 

INJURY  BY  FIRE. 

§  50.  General  rule  as  to  damage  by  fire. 

§  51.  No  redress  for  damage  by  unavoidable  accident. 

§  52.  Common-law  rule  as  to  damage  by  lire. 

§  53.  One  may  burn  stubble,  when. 

§  54.  One  may  burn  rubbish  or  wood  on  liis  land. 

§  55.  As  to  burden  of  proof  of  negligence  in  case  of  fire. 

§  56.  Proximate  damages  alone  recoverable. 

§  57.  Statutes  as  to  damage  by  lire. 

§  58.  State  laws  as  to  injury  by  lire. 

§  59.  A  trespasser  responsible  for  damage  by  fire. 

§  60.  Liability  of  hunters  or  travelers  for  damage  by  fire. 

§  61.  Damage  by  fire  from  steam  thresher. 

§  62.  Negligence  in  use  of  steam  thresher. 

§  63.  Duty  of  ijroprietor  of  steam  thresher  to  use  appliances  to  prevent  escape 

of  sparks. 

§  64.  O^Tier  of  steam  thresher  not  an  insurer. 

§  65.  Fires  caused  by  locomitives,  common-law  rule. 

§  60.  Rule  in  America  as  to  fires  by  sj)arks  from  locomotives. 

§  G7.  Statute  as  to  fires  from  locomotives. 

§  68.  State  laws  as  to  fires  from  locomotives  in  America. 

§  69.  Value  of  common-law  rule  as  to  fires  from  locomotives. 

§  70.  Burden  of  proof  of  negligence  when  fire  occurs  from  locomotive. 

§  71.  Duty  of  railroad  corporation  to  guai-d  against  fire. 

§  72.  Care  required  to  prevent  escape  of  fire  from  locomotive. 

§  73.  Duty  of  railroad  company  to  extinguish  fires  caused  by  locomotives. 

§  74.  Proximate  and  remote  damage  by  fire  from  locomotive. 

§  75.  Liability  of  railroad  companies  for  damage  by  sjiread  of  fire. 

§  76.  Duty  of  farmer  to  guard  his  crops  against  fire  from  locomotive. 

§  77.  Farmers  not  bound  to  guard  against  fire. 

§  50.  General  rule  as  to  damage  by  fire. — By  the  com- 
mon law,  one  who  negligently  sets  fire  to  any  building,  rubbish, 
or  anything  upon  his  land,  was  liable  for  the  damage  which 
resulted  from  the  spread  of  the  fire  to  his  neighbor's  premises.^ 

The  owner  or  possessor  of  property  is,  in  general,  responsible 
that  it  be  so  used  as  that  others  receive  no  injury ;  and  where 
such  injury  happens  from  the  negligence  of  a  person  about  the 

1  Beaulieu  v.  Fringham,  Year  Book,  2  H.  TV,  f.  18,  pi.  G. 


§§  51-52  IX JURY    BY    FIRE.  58 

premises,  it  lies  upon  the  owner  to  absolve  himself,  wlietlicr  the 
damage  results  from  his  own  act,  or  that  of  his  servant,  or  other 
per.^im  acting  under  his  direction. 

The  principle  is,  that  every  man  is  bound  to  so  deal  Avith  his 
own  property  as  not  to  injure  that  of  others,  and,  therefore,  if  a 
fire  occurs  by  the  negligence  of  the  OAvner  of  land  on  which  it 
originated,  and  by  the  fire  his  neighbor's  crops,  buildings,  or 
other  property  is  destroyed,  he  v»diose  negligence  has  caused 
the  damage  must  be  held  liable  for  it ;  ^  but  he  is  not  liable  if 
the  accident  was  inevitable,  or  he  was  not  in  fault. 

§  51.  No  redress  for  damage  by  inevitable  accident,  or 
for  losses  resulting  from  mutual  negligence. — But  Avhen 
tlie  injury  comes  from  the  negligence  of  one  party,  he  cannot 
shield  liimself  from  liability  by  calling  it  an  accident. 

A  man  is  answerable  for  the  natural  and  probable  consequen- 
ces of  his  fault.  But  if  his  fault  happen  to  concur  with  some- 
thing extraordinary  and  not  likely  to  be  foreseen,  he  will  not  be 
answerable. 

If,  however,  a  man  engage  in  an  act  which  the  circumstances 
indicate  may  be  dangerous  to  others,  he  must  take  all  the  care 
which  prudence  Avould  suggest,  to  avoid  an  injvuy. 

§  52.  Common-law  rule  as  to  damage  by  fire. — Certain 
English  statutes,  enacted  before  the  separation  of  the  American 
colonies,  relieved  the  owner  of  real  property  from  liability  for 
the  spread  of  fire  which  commenced  on  his  land  accidentally, 
even  though  the  commencement  of  the  fire  was  due  to  his  neg- 
ligence :  and  the  Supreme  Court  of  New  York  has  held  that 
these  statutes  are  to  be  regarded  as  part  of  the  common  law  as 
adopted  by  that  State,  and  that,  on  principle,  a  man  should  not 
be  held  responsible  for  damages  which  result  by  spread  of  fire 
which  accidentally  caught  on  his  land,  even  though  he  was  neg- 
ligent in  allowing  it  to  begin.^   The  opinion  of  Blackstone  seems 

1  Althorf  V.  Wolf,  22  K  Y.  355;  Booth  v.  Mister,  7  Carr.  &  Payne,  G6;  Blake 
r.  F'jrris,  1  Sold.  48;  Vaughn  v.  Menlove,  3  Bing.  N.  C.  408;  Barnard  v.  Porr,  21 
Pick.  378;  Hanlon  v.  Ingram,  3  Clarke,  (Iowa)  81. 

2  Lan.sing  ?;.  Stone,  37  Barb.  15;  3  Kent's  Com.  436,  Note  C;  McGrew  v.  Stone, 
53  Pcnu.  St.  430. 


59  INJURY    BY    FIRE.  §  52 

to  be  in  accord  with  this  proposition.^  But  the  general  con- 
struction of  these  statutes,  even  in  Enghmd,  leaves  the  ori^In:i! 
common-law  rule  in  force,  and  does  not  materially  vary  or 
modify  it.^ 

1  Dl.  Com.  4.".1. 

2  Vaughn  r.  :Menlove,  3  Bing.  N.  C.  4G8  ;  4  Scott,  241,  in  which  tlm  dcfondant 
stacked  on  liis  land  some  hay  in  such  condition  as  that  there  was  danger  of  its 
taking  lire  from  spontaneous  combustion  ;  he  was  warned  of  its  liability  to  take 
fire,  and  advised  to  take  the  rick  down,  but  replied  "that  lie  would  chance  it." 
It  did  take  tire,  and  was  not  only  destroyed,  but  the  lire,  spreading  to  the  jilaint- 
iff's  laud,  tliere  burned  his  cottage.  Defendant  was  held  liable,  on  llie  ground 
that,  tliough  an  accident,  the  lire  was  attributable  to  his  culpable  negligence, 
and  he  ought  to  respond  to  the  damage  done. 

In  C'anterbury  r.  Attorney-General,  1  Phillips,  30G,  Lord  Lyndhurst  com- 
ments upon  this  case,  and  questions  the  soundness  of  the  decision,  because  the 
statutes  of  Anne  and  George  III  ajipeared  to  have  been  overlooked  ;  but  in 
Filliber  c.  Phipiiard,  1'2  Q.  B.  :347,  the  doctrine  of  Vauglin  i-.  Jlenlovc  was  to  be 
law  upon  the  proposition  that  tlioso  statutes  applied  only  to  fires  jiurcly  acci- 
dental. It  should  be  considered,  liowever,  that  the  x^oint  was  not  absolutely 
involved  in  this  case  of  Filliber  i\  Phijipard,  as  the  fire  was  not  accidental  at  all, 
but  was  purposely  lighted  by  defendant  on  his  land,  and  thence  sj)read  to  his 
neighbor's. 

In  Barnard  v.  Poor,  21  Pick.  378,  the  common-law  rule  was  held  to  be  law, 
and  that  tlie  statutes  of  Anne  and  George  III  were,  in  effect,  declaratory  of  it. 
It  was  held  that  an  action  on  the  case  woiild  lie  for  so  carelessly  carrying  fire 
by  defendant  as  that  plaintiff's  stock-yard  was  destroyed.  But  in  ]\Iaull  v.  Wil- 
son, 2  Harring.  443,  it  was  held  that  an  action  would  not  b'o  for  damages  from 
a  fire  which  was  purely  accidental,  but  spread  from  defendant's  to  plaintiff's 
premises.  In  a  late  New  York  case,  Webb  r.  R.  W.  &  O.  R.  R.  Co.  4!)  N.  Y.  425, 
the  law  was  discussed  at  lengtli,  and  the  opinion  of  the  Court  was  :  "It  cer- 
tainly is  not  a  novel  iiropositiou  that  he  who,  by  his  own  negligence  or  misadven- 
ture, creates  or  suffers  a  fire  upon  his  own  premises,  which,  burning  his  property, 
spreads  thence  on  to  the  immediate  adjacent  ijremises  of  another,  and  tliere 
destroys  the  property  of  the  latter,  is  liable  to  him  in  an  action  for  the  damages 
which  he  has  suffered.  This  rule  was  founded  on  the  general  custom  of  the 
realm  ;  in  other  words,  it  was  tlie  peculiarity  of  the  common  law,  and  it  has  its 
support  in  the  maxim,  '  every  man  must  use  his  owti  so  as  not  to  hurt  another,' 
and  it  was  applied,  not  onlj'  to  the  case  of  a  fire  arising  in  a  house,  but  to  that 
of  one  arising  on  the  ojien  land  ;  and  not  only  where  the  fire  was  intentionally 
set  and  carelessly  managed,  but  where  negligently  kindled.  At  fir.st  it  was 
held  that  tlie  defendant  was  liable,  though  guiltless  of  negligence,  and  that  he 
could  defend  himself  only  by  showing  that  the  fire  was  excited  by  some  supe- 
rior caiise  which  he  could  not  resist  nor  control.  And  so  firmly  fixed  was  tliis 
rule  in  the  common  law  that  there  must  needs  be  a  statute  to  soften  its  rigor. 
(G  Anne,  Cliap.  31,  Sec.  G7  ;  and  14  Geo.  Ill,  Chap.  78,  Sec.  70.) 

"We  have  the  common-law  i^rinciple  well  establislied,  thoroughly  recognized, 
and  still  existing  to  this  extent  :  that  lie  who  negligently  sets  or  negligently 
manages  a  fire  on  his  own  property  is  liable  to  his  immediate  neiglibor  for  the 
damage  caused  to  htm  by  the  spread  of  tlie  fire  on  to  his  neiglibor's  next  adja- 
cent property.  It  is  urged  that  tlie  statute  of  Anne,  as  amended  bj'  tliat  of  the 
third  George,  is  a  part  of  the  common  law  of  this  State,  and  that  therebj'  it  is 


§§  53-o4  IX.JUET    BY    FIRE.  GO 

§  53.  A  man  may  bum  stubble  on  his  land,  or  use  fire  in 
any  manner  to  clear  hi<  land,  io  long  a.s  he  exercises  ordinary 
care  and  prudence  in  guarding  against  its  spread,  or  setting  fire 
to  another's  property. 

One  who  "willfully  lights  a  fire  upon  his  own  premises  must 
use  at  least  ordinary  care  to  avoid  its  spread  to  the  premises  of 
his  neighbor.  It  would,  vmquestionably,  be  culpable  negligence 
to  start  a  fire  in  any  place  where,  to  a  person  of  ordinary  intelli- 
gence, it  is  apparent  that  a  spread  of  the  fire  and  injury  there- 
from to  another  is  reasonably  to  be  feared.^ 

§  54.  One  may  bum  rubbish  or  wood  on  his  land, — The 
owner  or  occupant  of  land  has  a  right  to  use  fire  to  consume 
rubbish,  wood,  or  other  things,  and  to  clear  his  land  for  culti- 
vation, and,  having  this  right,  if  he  use  it  with  ordinary  care  to 
prevent  the  spread  of  fire,  he  cannot  be  held  liable  for  damages 
if  the  fire  extend  to  his  neighbor's  land  and  there  destroy  or  in- 
jure property.-      So  a  rnfiri  hns  the  right  to  bum  the  stubblf  on 

provided  that  "no  action,  or  suit,  or  process  whatever  shall  be  had  against  any 
person  in  whose  house,  chamber,  stable,  bam,  or  other  building,  or  on  whose 
estate  any  fire  shall  acciderdolbj  begin,  nor  shall  any  recompense  be  made  by 
such  person  for  any  damage  thereby,  any  law.  usage,  or  custom  to  the  contrary 
notwithstanding.'  It  is  not  needed  that  it  be  determined  whether  the  claim 
that  these  statutes  are  a  part  of  the  common  law  of  this  State  is  well  founded. 
It  is  sufficient  to  say  of  them  that  they  apply  only  in  a  case  in  which  the  fire 
did  accidentally  begin,  and  that  it  has  been  held,  on  grave  consideration,  that  a 
fire  arising  from  negligence  is  not  one  which  does  accidentally  begin,  and  that 
the  statutes  referred  to  afford  no  defense  to  one  who  negligently  sets  or  man- 
ages a  fire." 

iTeall  r.  Barton,  40  Barb.  137;  Keefe  r.  K.  E.  Co.  Sup.  Ct.  ilinn.  January, 
1S75.  "The  owner  has  the  absolute  right  to  use  his  property  as  he  pleases,  ex- 
cept so  far  as  the  effect  of  such  use  may  be  to  invade  or  infringe  some  right 
existing  in  another." 

2De  France  f.  Spencer,  2  Greene,  (Iowa)  4C2;  Calkins  v.  Barger,  -14  Barb. 
424;  Stuart  r.  Hawley,  22  Barb.  G19:  Miller  r.  ilartin,  11  Mo.  508;  Averitt  r. 
Murrill,  4  Jones'  (N.  C.)  Law,  323:  Clark  r.  Foote,  8  Johns.  421;  Fahn  r.  Eei- 
chert,  8  "Wis.  255;  Hanlon  r.  Ingram,  3  Iowa,  81. 

In  most  of  these  cases,  the  damage  complained  of  resulted  from  fire  spreading 
from  burning  stubble  by  defendant  on  his  land,  in  a  dry  season,  and  the  wind 
blew  sparks  thence  to  adjoining  fields.  The  rulings  were  to  the  effect  that  burn- 
ing of  stubble,  even  at  a  very  dry  part  of  the  year,  and  at  the  coiLsequent  risk 
of  the  fire  spreading,  was  not  sulEcient  negligence  to  charge  defendant. 

The  circumstance  that  he  who  started  a  fire  for  legitimate  purposes,  upon  his 
own  land,  did  not  keep  constant  watch  of  it,  is  not,  alone,  enough  to  establish 
culpable  negligence.  (Calkins  v.  Barger,  44  Barb.  424.)  In  this  case,  the  defend- 
ant, in  the  early  part  of  Alay,  set  fire  to  some  log  heaps  on  his  land;  the  logs 


61  IX JURY    BY    FIRE.  §  5o 

his  land,  subject  to  the  same  general  rule  that  he  must  u.se  or- 
dinary care  to  avoid  spreading  the  fire  upon  the  lands  of  others 
and  there  doino;  damage.^ 

§  55.  Negligence,  burden  of  proof  of  in  case  of  fire. — 
As  to  where  lies  the  burden  of  proof  of  the  exercise  of  ordin- 
ary care  or  negligence  in  case  of  fire,  is  to  some  extent  an  open 

■were  old  and  damp,  and  were  at  a  consideral>le  distance  from  his  Jiouse,  and 
about  a  third  of  a  mile  from  i^laintiff 's  barn.  The  land  where  the  fire  was  set 
was  damp,  near  a  swamp,  and  had  been  burned  over  the  year  before.  The  de- 
fendant lighted  the  tire  and  left  it,  and  went  away  from  home  not  to  return  for 
some  hours,  lea^^ng  it  burning;  the  wind  rose  to  a  gale  and  blew  the  fire  out 
from  the  log  heap  on  to  jilaintiff  's  land,  whence  it  spread  to  his  barn  and  burned 
it.  Held,  that  if  defendant  had  no  reason  to  apprehend  that  a  gale  would  occur 
■when  1k!  left  home,  he  had  a  right  to  go  away  and  leave  the  lire,  and  he  should 
not  be  held  responsible  for  the  loss  of  the  barn. 

But  in  Ilanlon  v.  Ingram,  1  Iowa,  lOS,  the  defendant  set  a  fire  on  his  own  land 
to  bum  rubbish,  and  the  fire  spread  to  his  neighbor's  premises  and  there  did 
damage;  the  Court  charged  tlie  jury  that  defendant  was  liable  only  for  f/ross 
negligence.  This  charge  was  held  to  be  error;  that  the  rule  was  that  he  who 
lights  a  lire  must  guard  it  with  ordinary  care,  should  take  such  precautions 
against  its  spread  as  would  naturally  characterize  a  prudent  man  in  the  ordin- 
ary care  of  liis  property. 

So  in  Garrett  v.  Freeman,  5  Jones'  (N.  C.)  Law,  78,  defendant  set  firo  to  a 
log  heap  which  was  within  live  j'ards  of  a  fence,  and  there  was,lying  around  the 
place  much  loose  dry  wood  and  other  combustible  material,  and  there  Avas  also 
a  dead,  dry  pine  tree  between  the  log  pile  and  the  fence;  the  weather  was  very 
dry  and  the  wind  rising;  the  pine  tree  caught  fire,  and  fell  across  the  fence, 
and  set  fire  to  plaintiff's  property.  The  Court  charged  the  jury  that  if  there  was 
no  wind  when  the  fire  was  started,  the  defendant  could  not  be  held  for  culpaVjle 
negligence.  On  appeal,  this  instruction  was  held  to  be  error,  and  judgment  re- 
versed. 

"  Every  person  has  a  right  to  kindle  a  fire  on  his  own  land  for  the  purposes  of 
husbandry,  if  he  does  it  at  a  proper  time  and  in  a  suitable  manner,  and  uses 
reasonable  care  and  diligence  to  prevent  its  spreading  and  doing  injury  to  the 
property  of  others.  The  time  may  be  suitable  and  the  manner  prudent,  and 
yet,  if  he  is  guilty  of  negligence  in  taking  care  of  it,  and  it  spreads,  and  injures 
the  proj)erty  of  another  in  consequence  of  such  negligence,  he  is  liable  in  dam- 
ages for  the  injury  done.  The  gi.st  of  the  action  is  negligence,  and  if  that  exists 
in  either  of  these  particulars,  and  injury  is  done  in  consequence  thereof,  the 
liability  attaches;  and  it  is  immaterial  whether  the  proof  establishes  gross  neg- 
ligence, or  only  a  want  of  ordinary  care  on  the  part  of  the  defendant."  (Hewey 
V.  Nourse,  54  ISIe.  259. ) 

"  But  if  a  man  engage  in  an  act  which  the  circumstances  indicate  may  be  dan- 
gerous to  others,  he  must  take  all  the  care  which  prudence  would  suggest  to 
avoid  an  injury."     (McGrew  v.  Stone,  53  Penn.  St.  430.) 

1  The  rule  is  given  in  Hanlon  v.  Ingram,  3  Iowa,  81,  as  follows :  "  All  of  the  cir- 
cumstances should  be  carefully  weighed,  and  unless  they  disclose,  with  reason- 
able certainty,  that,  in  setting  out  the  fire,  and  preventing  its  escape,  the  de- 
fendant has  used  those  precautionary  measures  which,  as  a  prudent  and  cau- 
tious man,  he  would  with  reference  to  his  own  property,  he  shoiild  be  held  liable."' 


§  50  IXJURY  BY   riRE.  62 

question  ;  whether  he  avIio  caused  the  fire  from  Avhich  damage 
occurred  must  prove  that  he  took  due  care  to  prevent  its  spread 
and  take  the  affirmative  of  that  proposition,  or  the  phiintiff,  wlio 
complains  of  the  injury,  must  ])rove  want  of  ordinary  care.  It 
is,  however,  now  generally  held  to  be  the  law,  that  the  com- 
plaining party,  as  he  must  rely  upon  negligence,  should  upon 
that  issue  take  the  affirmative.^ 

§  56.  Proximate  damages  alone  recoverable. — In  some 
of  the  States,  it  has  been  held  that  no  one  is  liable  for  damage 
done  to  a  neighbor's  house  by  a  fire  Avliich  commenced  on  the 
land  of  the  person  complained  against,  and  which,  by  his  negli- 
gence, destroyed  his  own  house,  and  spread  through  the  air 
by  a  strong  wind  to  houses  not  immediately  adjoining.  The 
damage  is  said  to  be  too  remote  to  afford  a  ground  of  action. 

A  distinction  is  claimed  between  the  result  of  negligence,  or 
the  lack  of  due  precaution,  and  an  injury  which  results  from 
malice  or  any  active  instrumentality  of  the  party  against  whom 
damages  are  claimed ;  but  the  decisions  appear  to  have  turned 
upon  the  proximateness  of  the  result  to  the  cause,  upon  the 
principle  that  in  determining  accountability  for  the  consequences 
of  a  Avrongful  act,  or  one  culpably  negligent,  the  immediate  re- 
sults, and  not  those  which  remotely  occur,  are  to  be  regarded.^ 

This  distinction  appears  to  have  had  great  vv'eight  in  the  minds 
of  the  judges,  as  it  appears  to  have  been  generally  conceded  as 
law  that,  where  the  fi-re  ran  along  a  line  of  connected  materials, 
such  as  dry  grass,  or  forest  trees,  the  person  oi'iglnally  in  fault 

iTurbervil  v.  Stamp,  1  Salk.  13.  In  this  case,  it  was  held  that,  the  injury  being 
shown,  and  that  it  resulted  from  a  fire  which  defendant  had  set  out,  he  Avas  put 
upon  his  defense,  and  must  show  that  he  had  taken  ordinary  care  to  guard 
against  the  spread  of  the  fir(^  and  damage  to  his  neiglibors;  but  the  converse  of 
this  was  held  in  Touitellot  v.  iLOsebiook,  11  Met.  4(j0,  and  in  Uatchelder  v. 
Heagan,  18  ^le.  .32;  that,  in  any  case  in  which  a  person  makes  a  fire  on  his  own 
land,  for  a  lawful  purpose,  and  the  Ih'c  sjireads  and  does  damage  to  another, 
the  person  who  has  suffered,  and  complains  of  tlie  injury,  must  aflirmatively 
allege  and  prove  negligence,  and  that  as  the  setting  fire  was  a  lawful  act,  it  was, 
of  itself,  no  evidence  of  negligence,  Avhich  is  tlie  gravamen. 

-"The  negligently  Imrning  of  a  house,  and  the  spreading  of  the  fire  to  a 
neighboring  house  and  tlie  burning  thereof,  do  not  give  tlie  owner  of  the  lost 
house  a  cause  of  action  against  the  owner  of  the  house  in  Avhich  the  fire  orighi- 
ated,  because  the  damages  are  too  remote."  (Ryan  ?•.  N.  Y.  C.  R.  R.  35  N.  Y. 
210;  Pcnn.  R.  R.  Co.  v.  Kerr,  C2  Penn.  St.  Zo'',.) 


CrT  INJURY    BY    FIRE.  §  57 

is  licld  lifiblc  for  tlic  whole   (Lamai^c,  on  the   ground   tli:it  tlic 
damage  is  the  immediate  and  proximate  result.^ 

But  this  distinction  appears  more  nice  tlian  wise  ;  it  is  diffi- 
cult to  see  any  just  distinction  between  a  fire  which  spi'eads  and 
extends  by  running  along  the  ground,  or  by  continuous  feeders 
in  the  shape  of  trees  or  dry  grasses,  and  that  where  the  wind 
causes  its  extension.^ 

§  57.  Statutes  as  to  damages  by  fire. — In  Connecticut, 
one  v.-ho  sets  fire  to  land  is,  by  statute,  made  liable  for  all  the 
consequences  of  its  spreading  to  and  doing  damage  on  the  land 
of  another  ;  ^  but  this  statute  has  been  held  to  be  confined  to 
sucli  damages  as  occur  from  a  spread  of  the  fire,  and  not  to  ex- 
tend to  the  case  of  a  stranger  who  sets  fire  on  land  to  which  he 
has  no  right  of  possession.  Against  such  an  one,  the  common- 
law  rule  furnishes  the  means  of  redress.* 

In  North  Carolina,  a  man  must  not  set  fire  on  his  own  land 
without  giving  notice  to  his  neighbor,  in  writing,  of  his  inten- 

1  Vaughn  v.  IMenlove,  32  Eng.  Com.  L.  613;  Vandenbiirgli  v.  Truax,  4  Denio, 
4Gi;  Ryan  v.  N.  Y.  C.  E.  E.  35  N.  Y.  214.     Opinion  by  Ch.  J.  DeGrey. 

2  Illinois  C.  E.  E.  v.  McClelland,  42  111.  355,  in  whicli  the  sparks  fi'om  a  locomo- 
tive i^assed  through  the  air,  a  long  distance,  and  set  lire;  it  appeared  that  the 
engine  was  not  provided  with  best  apparatus  for  arresting  sparks ;  the  company 
■was  lield  liable  as  for  the  injury,  which  was  deemed  the  immediate  and  proxi- 
mate result  of  negligence,  notwithstanding  the  fact  that  tlie  air  was  the  medium 
through  which  the  sparks  passed. 

Eyan  v.  N.  Y.  C.  E.  E.  Co.  35  N".  Y.  210,  and  Penn.  E.  Co.  v.  Kerr,  62  Penn. 
St.  353,  are  commented  upon,  and  without  substantial  approval,  in  Webb  v.  E. 
W.  &  O.  E.  E.  Co.  49  N.  Y.  423  and  427-31.  And  in  Massachusetts  it  has  been 
distinctly  held  that  a  man  who  sets  and  keeps  a  lire  on  his  own  land  negligently 
is  liable  for  injury  done  by  its  direct  communication  to  his  neighbor's  land, 
whether  through  the  air  or  along  the  ground,  and  whether  or  not  he  might 
reasonably  have  anticipated  the  particular  manner  and  direction,  in  which 
it  was  communicated.  (Higgins  ?'.  Dewey,  107  Mass.  494.)  In  England,  also,  it 
has  been  held  that  there  is  no  ground  for  distinction  between  cases  where  lire 
spread  from  running  along  the  gi'ound  or  by  sparks  driven  by  the  wind  through 
the  air.  The  spread  of  the  fire  is  equally  the  result  of  natural  causes,  and  the 
distinction  is  held  to  be  without  merit.  (Fletcher  v.  Eylands,  Law  Eep.  3  II. 
L.  330;  Smith  v.  S.  E.  E.  Co.  Law  Rep.  G  C.  P.  14.) 

3  Conn.  Rev.  St.  p.  84,  Sec.  365.  "  Every  person  who  shall  set  fire  on  any  land, 
that  shall  run  upon  the  land  of  any  other  i^erson,  shall  jiay  to  the  OAvner  all  the 
damage  done  by  such  fire." 

*  Grannis  v.  Cummings,  25  Conn.  1C5,  in  which  it  was  held  that  a  fire  started 
by  a  person  who,  for  a  specific  purpose,  had  a  license  to  use  the  land  on  which 
he  set  the  fire,  did  not  come  within  the  provisions  of  the  statute  ;  but  such  a 
case  is  governed  by  the  common-law  rule. 


§  58  IXJURY    BY   FIRE.  64 

tion  so  to  do,  of  at  least  two  days,  that  such  neighbor  may 
guard  against  damage.^  The  giving  of  the  notice  may  be 
waived,^  however,  by  the  owner  of  the  adjoining  land ;  but, 
unless  such  notice  is  given  or  waived,  he  who  sets  fire  on  his 
own  land  is  liable  for  damages  Avhich  therefrom  result  to  his 
neighbor.^ 

The  rule  in  California  is  that  treble  damages  are  awai'ded 
against  him  who  negligently  sets  fire  to  his  own  woods,  or  neg- 
ligently suffers  any  fire  to  extend  beyond  his  own  land,^  and 
thereby  his  neighbor  suffers  loss. 

In  Illinois,  no  one  is  allowed  to  set  fire,  save  between  INIarch 
and  November,  and  only  then  for  the  purposes  of  self-protec- 
tion from  prairie  fires  ;  and  where  damage  occurs  from  fire 
spreading,  the  burden  of  proof  is  on  him  who  set  the  fire,  to 
show  that  he  did  so  to  jirotect  himself  from  prairie  fires,  and 
that  he  used  all  due  precaution  to  prevent  the  spread  of  his  fire. 

§  58.  State  lavrs  as  to  damage  by  fire. — In  Georgia,  no 
one,  not  a  resident  of  the  county  where  the  firing  is  done,  and 
who  owns  land  therein,  is  permitted  to  fire  any  woods,  lands,  or 
marshes,  and  even  such  resident  and  land-owner  must  do  so  only 
between  the  twentieth  of  February  and  first  of  April,  annually, 
and  by  notifying  in  writing  those  persons  whose  lands  adjoin  the 
premises  whereon  he  proposes  to  set  fire  ;  the  notice  must  be 
given  at  least  one  day  before  setting  the  fire,  and  any  persons 
who,  cither  by  themselves  or  agents,  permit  fire  to  get  into  the 
woods,  lands,  or  marshes,  through  neglect,  are  to  be  deemed  as 
setting  fire,  and  within  the  provisions  of  the  act. 

The  penalty  for  violation  of  this  statute  is  a  fine — or,  as  it  is 
called,"  forfeit " — of  five  hundred  dollars,  one-half  of  which  goes 
to  the  informer,  and  the  balance  to  the  educational  fund  of  the 
county.  And  he  who  suffers  by  the  fire  may  also  recover  his 
damages."'^ 

In  iMichigan,  every  person  who  shall  willfully  or  negligently 
set  fire  to  any  woods,  prairies,  or  grounds,  not  his  own  property, 

1  N.  C.  Rev.  Code,  115,  Chap.  IC,  Sec.  1. 

-  Robertson  v.  Ivirby,  7  Jones'  (N.  C.)  Law,  477. 

3  Avcritt  r.  3Iuitc11,  4  Jones'  (N.  C.)  Law,  322. 

*  IVjlitical  Code  Cal.  Sec.  3344. 

6  Code  of  Georgia,  1873,  Sees.  1456-9. 


65  INJURY   BY   FIRE.  §  59 

or  shall  willfully  or  negligently  permit  any  fire  to  pass  from  his 
own  woods,  prairies,  or  grounds,  to  the  injury  or  destruction  of 
the  property  of  any  other  person,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be  punished  by  a 
fine  not  exceeding  one  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  both  fine  and  imprisonment,  in  the  discre- 
tion of  the  Court ;  and  shall  also  be  liable  to  the  party  injured 
in  double  the  amount  of  damages  sustained.^ 

The  laws  of  Ohio  make  it  an  offense,  punishalilc  l)y  fine  not 
exceeding  fifty  dollars,  for  any  one  to  willfully  and  maliciously 
set  fii'c  to  "  any  woods,  prairies,  or  other  grounds,"'  other  than 
his  own,  or  to  "  intentionally  permit  the  fire  to  pass  from  his  own 
prairie  or  grounds,  to  the  injury  of  any  other  person  or  persons, 
and  any  person  who  may  so  offend  is  made  "  liable  to  an  action 
of  the  party  injured,  for  the  damages  which  he,  she,  or  they 
may  have  sustained  in  consequence  of  such  fire.^ 

In  the  several  criminal  codes  are  to  be  found  provisions 
making  the  firing  of  woods,  prairies,  and  lands,  or  negligently 
allowing  fires  to  spread  from  a  person's  own  lands  upon  those  of 
his  neighbor,  misdemeanor  or  crime,  and  as  such  imposing  pun- 
ishment by  fine  or  imprisonment,  or  both.^ 

§  59.  A  trespasser  responsible  for  damage  by  fire. — A 

trespasser  who  sets  fire  to  land  is  responsible  for  the  damages 
which  result,  as  the  proximate  consequences  of  his  act,  not  only 
to  the  owner  of  the  land  on  which  the  fire  begins,  but  also  to 
all  other  persons  ;  and  so  of  any  one  who  either  wrongfully  or 
negligently  sets  fire  to  land  which  does  not  belong  to  .or  is  not 
in  his  possession  ;  he  must  respond  for  such  damage  as  he  has 
thereby  caused.'^  And  even  if  a  person  be  rightfully  in  the  high- 
way, traveling  or  driving  stock,  and  he  makes  a  fire  upon  or  near 
the  ground  of  another  for  a  necessary  purpose,  but  fails  to  take 
due  precaution  to  guard  against  the  fire  spreading,  he  must  an- 
swer for  loss  of  property  occasioned  by  the  fire. 

1  Compiled  Laws  Mich.  1871,  pp.  2143-4. 

2  Revised  Stats.  Ohio,  Vol.  1,  p.  432. 

8  These  statutes  are,  generally  speaking,  rather  to  be  regarded  as  substantial 
afBrmations  of  the  common  law  than  as  abrogating  it,  and  entire  reliance  upon 
the  statutes  would  be  unwise.    (Hewey  v.  Nourse,  54  Me.  258.) 

4  Finley  v.  Langston,  12  ISIo.  120. 

Farm — 5. 


§  60-61  INJURY   BY   FIRE.  GG 

§  60.  Liability  of  hunter  or  traveler  for  damage  by  fire. 

— If  :i  luniter  or  traveler  neglig-ently  t^tarts  a  fire  upon  wild 
lands  or  prairie,  lie  is  liable  for  all  property  destroyed  by  the 
flames.  But  as  it  is  often  necessary  to  kindle  fires  upon  wild 
lands  and  upon  prairies,  fighting  fire  by  fire  is  sometimes  the 
only  means  at  command  for  self-protection.  The  fact  that  fire 
Avas  willfully  kindled  is  not  conclusive  evidence  to  establish  the 
liability  of  him  who  set  it  for  damages  which  result  fi'om  its 
spread ;  but  the  fact  being  established  of  a  man's  having  set 
fire  to  land  which  was  not  his  own,  or  in  his  possession,  the  bur- 
den of  proof  is  upon  him  to  show  that  he  had  good  cause  for  so 
doing,  and  he  must  take  the  affirmative  upon  and  establish  that 
fact  before  he  can  avoid  the  liability  ;  and  he  must  also  show 
that  he  used  due  care  and  diligence  to  prevent  the  spread  of  the 
fire.i 

§  61.  Damage  by  fire  from  steam-thresher.  —  The  right 
to  use  such  agencies  as  may  occasion  loss  to  another,  or  are 
dangerous,  cannot  be  seriously  questioned.  There  are  no  results 
which  can  be  attained  without  some  risk,  and  it  would  be  as 
Injudicious  to  question  the  right  to  use  horses  to  haul  produce 
t(j  market,  because  they  might  run  away  and  cause  Injury,  as 
to  call  In  question  the  right  to  employ  steam-engines  to  work 
threshers.     Neither  can  any  precise  lade  of  care  In  the  use  of 

1  Clelland  v.  Tliomton,  43  Cai.  437.  This  was  an  action  for  damages.  The 
complaint  was  that  the  defendant,  while  driving  a  herd  of  sheep  througli  the 
country,  encamped  near  jilaintiff's  premises,  and  carelessly  left  fires  bui-ning, 
which,  after  defendant's  departure,  got  out  and  spread  to  plaintiff's  land,  and 
there  destroyed  liis  buildings  and  other  jiroperty.  Held,  that  where  a  party 
makes  a  lire  for  necessary  purposes,  upon  or  near  the  grounds  of  another,  and 
negligently  leaves  it,  with  combustible  material  about  it,  and  the  lire  spreads 
and  destroys  adjacerit  property,  the  party  building  the  lire  is  liable  for  the  dam- 
age done. 

The  rule  is  thus  laid  down  in  the  latest  standard  work  on  negligence  :  "  ]l7tc)i 
Jive  is  lair/til,  hurden  on  plaintiff  to  prove  ncrjlif/ence ;  hut  ofheriuise  loith  unlaiofnl 
Jiirs.  Fire,  like  water  or  steam,  is  likely  to  produce  mischief  if  it  escapes  and 
goes  beyond  control  ;  and  yet  it  has  never  been  held,  in  this  country,  that 
one  building  a  lire  upon  his  own  premises  can  be  made  liable,  if  it  escapes 
upon  his  neiglibor's  premises  and  does  him  damage,  without  proof  of  negli- 
gence, liut  tin.'  nde  is  otherwise  when  the  lire  is  unla\\'ful,  in  which  case  the 
burden  is  on  the  defendant,  after  proof  of  the  unlawfulness,  to  defend  liimself 
by  proving  rfimis.  Eminently  is  this  the  case  with  lire  started  on  prairies,  or 
otluT  wild  lands,  where  the  devastation  is  likely  to  be  so  terrible."  ("Wharton 
cu  Xegligence,  Sec.  8(i7.) 


67  INJURY    BY    FIRE.  §  61 

such  eno;mes  be  prescribed,  and  tlicrc  have  been  no  instances  in 
wliich  the  limit  of  approach  toward  straw  stacks,  fences,  or 
buiklings  have  been  fixed  at  which  such-  engines  could  be 
worked. 

Steam  being  generated  by  heat,  and  there  being  no  known 
means  of  producing  combustion  Avithout  a  draught  of  air,  which 
carries  off  sparks  from  the  fuel,  the  emission  of  sparks  from  the 
smoke-stack  of  a  steam-thresher  is  not  of  itself  ille^id.  The 
law,  in  conferring  the  right  to  use  an  clement  of  danger,  pro- 
tects the  person  using  it,  except  for  an  abuse  of  his  privilege. 
But,  in  proportion  to  the  danger  to  others,  will  arise  the  degree 
of  caution  and  care  he  must  use  who  exercises  the  privilege. 
Great  danger  demands  higher  vigilance  and  more  efficient 
means  to  secure  safety ;  where  the  peril  is  small,  less  diligence 
will  suffice. 

It  is  undoubtedly  the  duty  of  him  who  operates  an  engine  in 
a  dry  grain  field,  where  his  machine  is  surrounded  by  combusti- 
ble matter,  to  use  the  utmost  possible  vigilance  and  foresight  to 
avoid  fire  getting  out  and  consuming  property  of  value. 

The  use  of  the  steam-thresher  and  similar  cKjricultural  imple- 
77ients  ^  symbolize  enterprise  and  attest  the  march  of  civiliza- 
tion ;  and  invoking,  as  we  must,  to  their  appreciation  the  talent 
and  understanding  in  which  they  had  their  origin,  we  should 
subject  those  who  use  such  implements  to  an  appreciation  of 
the  appliances  for  safety  which  a  coeval  employment  of  ingenu- 
ity and  talent  have  placed  at  their  command.  It  is,  therefore, 
the  duty  of  those  who  use  these  hazardous  agencies  to  control 
them  carefully,  to  adopt  every  known  safeguard,  and  to  avail 
themselves,  from  time  to  time,  of  every  approved  invention  to 
lessen  their  danger  to  others.^ 

1  As  to  the  precise  meaning  to  be  attached  to  sucli  descriptive  terms  as 
"  agricnltural  implements,"  some  doubt  might  be  entertained  as  to  whether  a 
steam-thresher  could  properly  be  classed  in  that  category  ;  but  in  the  English 
statutes,  14  and  15  Vic.  Chap.  38,  Sec.  4,  and  3  Geo.  IV,  Chap.  120,  Sec.  3(),  it  Avas 
enacted  tliat  the  words  implements  of  hnsbcmclry  should  be  deemed  to  include 
threshing  machines,  and  in  Eegina  r.  Matty,  27  L.  J.  (N.  S.)  Q.  P..  222,  the  steam- 
engine  which  jiertained  to  a  steam-tln-eslier  was  held  to  be  an  implement  of  hus- 
bandry witliin  tlic  meaning  of  the  statutes  mentioned,  so  as  to  render  it  exempt 
fi'om  payment  of  toll. 

2  Tally  V.  Ayers,  3  Snead,  (Tenn.)  G77  ;  Shearman  Sc  Eedfield  on  Negligence, 
Sec.  322  ;  Brand  v.  Hammersmith  R.  Co.  Law  Hep.  4,  H.L.  171  ;  Rood  v.  N.  Y.  c*t 


§  62  IJS' JURY    BY   FIRE.  68 

§  62.   Evidence  of  negligence  in  use  of  steam-threslier. 

—  These  ])rinciples  are  abundantly  supported  by  authorities, 
and  are  founded  upon  justice,  but  difficulties  may  arise  in  their 
practical  application.  Questions  of  skill,  vigilance,  care,  and 
proper  management  in  the  business  of  running  such  machines, 
may  become  matter  of  controversy,  as  they  may,  for  that  mat- 
ter, in  any  business,  and  such  questions  so  entirely  depend  upon 
the  circumstances  of  individual  cases  that  no  general  rule  can 
be  ^iven.  All  of  this  class  of  questions  must  be  submitted  to 
the  jury,  to  determine  from  the  circumstances  what  was  due 
care,  and  whether  or  not  it  had  been  exercised.  The  solution 
of  these  questions  depends  upon  the  facts  of  each  case.  What 
is  care  in  one  case  may  be  negligence  in  another,  where  the 
danger  is  greater  and  more  care  is  required.  The  degree  of 
care  having  no  legal  standard,  but  being  measured  by  the  facts 
that  arise,  it  is  reasonable  that  such  care  must  be  required 
wliich  it  is  shown  is  ordinarily  sufficient,  under  similar  circum- 
stances, to  avoid  the  danger  and  secure  the  safety  needed. 
Ordinary  care  is,  therefore,  the  only  rule  which  can  be  stated  as 
that  for  a  lack  of  which  the  proprietor  of  a  steam-thresher  can 
be  made  liable  in  damages.  But,  as  the  degree  of  care  is  meas- 
ured in  every  case,  or  class  of  cases,  by  the  surrounding  cir- 
cumstances, that  which  is  ordinary  care  in  a  case  of  extraordi- 
nary danger  would  be  extraordinary  care  in  a  case  of  ordinary- 
danger,  and  that  which  Avould  be  ordinary  care  in  a  case  of 
ordinary  danger  would  be  less  than  ordinary  care  in  a  case  of 
great  danger.  Hence,  as  the  nearest  possible  approach  to  a 
general  rule,  it  results  that  those  who  avail  themselves  of  these 
improvements  and  labor-saving  machines,  which,  for  their  pri- 
mal motor,  must  rely  upon  so  dangerous  an  element  as  fire, 
should  be  held,  as  a  rule  of  ordinary  care,  to  the  employment 
of  constant  vigilance,  and  the  use  of  the  most  approved  meth- 

E.  R.  R.  18  Barb.  80  ;  McCready  v.  S.  C.  R.  R.  2  Strobli.  T^w,  35(5  ;  Vaughn  r.  T. 
R.  R.  5  Hiirlst.  &  N.  G79  ;  Reading  v.  Yeiser,  8  Renn.  St.  3(iG  ;  Frankford  r.  P.  & 
T.  R.  R.  54  Penn.  St.  .345  ;  I.  C.  R.  R.  v.  Mills,  42  111.  407.  The  ox^nuT  of  a  steam- 
thresher  cannot  he  held  resjionsible  for  injuries  arising  through  the  negligent  use 
or  management  of  his  property  by  one  who  has  i^laced  himself  in  such  position 
that  as  to  him  the  owner  owes  no  duty.  (Keefe  v.  R.  R.  Co.  Sup.  Ct.  Minn.  Jan- 
uary, 1875.) 


69  INJUEY   BY   FIRE.  §  63 

ods  for,  and  appliances  to  Le  used  in,  guarding   against  the 
escape  of  firc.^ 

§  63.  Proprietor  of  steam-thresher  must  use  appliances 
to  avoid  escape  of  fire, — The  necessity  of  using  particular  ap- 
pliances to  prevent  escape  of  fire  is  a  question  of  fact  for  the 
jury;  and  where  the  testimony  as  to  the  value  of  particular  im- 
provements is  conflicting,  the  question  of  whether  or  not  the 
party  who  runs  the  machine  should  avail  himself  of  it  in  order  to 
exercise  due  care,  has  been  held  to  be  a  question  for  the  jury 
to  pass  upon  as  one  of  fact.^  And  if  such  appliances  as  exper- 
ience has  shown  to  be  beneficial  are  upon  the  machine,  the  one  who 
runs  the  engine  must,  at  his  peril,  see  that  they  are  kept  in  use, 
and  whether  he  has  done  so  or  not  is  especially  for  the  jury  to 
determine.^ 

1  "A  person  who  takes  reasonable  care  to  guard  against  accidents  arising 
from  ordinary  causes  is  not  liable  for  accidents  arising  from  extraordinary 
ones."     (Blyth  v.  B.  W.  Co.  2  Jur.  N.  S.  333  ;  11  Exch.  781  ;  25  L.  J.  Excli.  212.) 

The  general  rule  is  that,  being  authorized  to  so  use  fire  to  make  steam,  the 
owner  of  the  machine  is  not  liable  unless  he  exercise  the  riglit  carelessly. 
Accidents  may,  however,  be  of  such  a  nature  that  negligence  may  be  presumed 
from  the  mere  fact  of  the  accident.  (Byrne  v.  Boadle,  33  L.  J.  Exch.  13  ;  9  L.  J. 
N.  S.  450  ;  2  H.  &  C.  722  ;  12  W.  E.  279.)  And  if  all  the  usual  or  needful  appli- 
ances to  prevent  the  escape  of  fire  are  used,  and  all  due  precaution  exercised,  still 
the  owner  of  the  machine  is  liable  if  the  tire  occur  by  reason  of  his  so  over- 
crowding his  engine  as  to  render  inoperative  the  appliances  used  to  prevent  the 
escape  of  sparks,  and  by  reason  of  such  conduct  the  fire  is  set.  (Hyett  v.  Read- 
ing R.  R.  Co.  23  Penn.  St.  373  ;  Jackson  v.  Chicago  Etc.  R.  R.  31  Iowa,  176 ; 
Toledo  R.  R.  v  Pindar,  53  111.  447. )  The  owner  of  the  machine,  however,  is  not 
to  be  held  liable  when  a  fire  occurs,  nor  does  a  presumirtion  of  negligence  arise 
because  he  had  not  on  his  machine  the  latest  invention  to  prevent  escape  of 
lire.  It  might  well  occur  that  many  inventions  are  of  little  or  no  value,  and  the 
person  who  used  them  might  in  so  doing  dejpart  from  usual  and  better  jirecau- 
tions  in  relying  upon  a  new  plan  or  appliance.  But  if  it  appear  that  an  inven- 
tion had  come  into  general  use,  and  had  been  found  to  be  a  means  of  avoid- 
ing the  danger,  and  been  generally  approved  of  by  those  who  made  use  of 
it,  the  owner  of  the  machine  ought  to  employ  the  agency  at  his  command  to 
avoid  danger,  and  he  neglects  to  do  so  at  his  peril.  (Shearman  &  Redfield  on 
Negligence,  Sec.  332  ;  Frankford  v.  P.  &  T.  R.  R.  54  Penn.  St.  345.) 

"  Ordinary  diligence  is  no  fixed  and  unalterable  standard  of  care:  it  is  always 
to  be  determined  by  the  facts  and  circumstances  of  each  case  ;  and  when  the 
circumstances  are  such  as  to  indicate  increased  peril,  it  would  require  greater 
watchfulness  to  constitute  ordinary  care  than  under  circumstances  of  less 
peril."     (Murphy  v.  R.  R.  Co.  38  Iowa,  539.) 

2Freemontle  v.  L.  &  N.  R.  R.  10  C.  B.  (N.  S.)  89;  Jackson  v.  C.  R.  R.  31 
Iowa,  17fi;  Dimmock  v.  N.  S.  R.  R.  4  Fost.  &  F.  1058. 

3  Anderson  v.  Cape  Fear  Steamboat  Co.  G4  N.  C.  399;  Rolke  v.  C.  R.  R.  Co. 
26  Wis.  537. 


§  64  INJURY    BY    FIRE.  70 

Of  course,  it  is  for  him  who  comphiins  of  the  injury  to  satisfy 
the  jury  that  the  fire  originated  from  the  thresher  engine  ;  but, 
the  origin  of  the  fire  being  proved,  it  would  seem  that  suflficient 
had  been  shown  to  put  upon  the  defendant  the  burden  of  proof 
of  exercise  of  ordinary  care  under  the  circumstances  of  the 
case,  and  so  it  has  been  hehl ;  ^  but  in  other  Courts  it  has  been 
hchl  that  phiintiif  must  take  tlie  affirmative  and  show  what  pre- 
cautions defendant  miglit  and  ought  to  have  taken,  but  did  not.^ 
At  all  events,  the  plaintiff  may  safely  rest  when  he  has  shown 
that  the  fire  occurred  by  sparks  escaping  from  the  engine,  and 
that  other  engines  are  in  common  use,  so  constructed  and  run 
that  sparks  from  them  do  not  escape,  and  that  the  particular 
engine  did  not  retain  its  sparks  as  others  in  common  use  did ;  and 
having  made  such  a  showing,  the  defendant  would  be  put  upon 
his  proofs  that  his  engine,  was  properly  constructed,  with  the 
common  appliances  in  use  to  guard  against  fire,  and  that  it  had 
been  operated  and  guarded  in  such  a  manner  as  a  man  of  or- 
dinary prudence  and  intelligence,  under  the  circumstances,  would 
exercise  in  guarding  his  own  property  of  a  like  character  from 
injury.3 

§  64.  Proprietor  of  steam-thresher  not  an  insurer. — Not- 
Avithstanding  the  rule  that  he  who  employs  in  his  business  an 
element  of  danger  must  be  held  to  strict  care,  and  the  use  of  all 
available  means  and  appliances  to  avoid  doing  injury  to  others, 
his  responsibility  should  not  be  so  far  extended  as  to  deprive 
him  of  the  riglit  to  make  use  of  such  machines  as  steam-thresh- 
ers, so  long  as  he  does  so  in  such  manner  as  to  maintain  the 
proper  balance  between  danger  and  benefit  to  the  jud^lic. 

There  are  no  circumstances  in  life  which  are  free  from  danger, 
and  a  member  of  the  body  politic  can  hardly  so  conduct  his 
business  as  that  a  possibility  of  injury  to  others  may  not  result 
therefrom ;  but  it  would  manifestly  be  wrong  to  therefore  pre- 

1  Sheldon  v.  Hudson  R.  R.  29  Barb.  22G;  Bass  v.  Chicago  R.  R.  28  111.  9;  Illin- 
ois C.  R.  R.  V.  Mills,  42  111.  407;  Piggott  t'.  Eastern  R.  R.  3  C.  B.  229;  Fitch  r. 
Pacific  R.  R.  45  Mo.  322. 

2  Hull  V.  Sacramento  R.  R.  Co.  14  Cal.  387;  Gandy  v.  C.  R.  R.  Co.  30  Iowa,  419. 
8  Field  V.  N.  Y.  C.  R.  R.  32  N.  Y.  339.  It  is  negligence  to  run  an  engine  after  it 

has  been  found  to  scatter  sparks.  (C.  &  G.  R.  R.  v.  Cleveland,  42  Vt.  449.)  And 
so  it  is  to  open  the  grates  and  let  out  upon  the  dry  ground  coal  and  cinders. 
(Martin  v.  Weston  R.  R.  23  Wis.  437.) 


71  INJURY   BY   FIRE.  §  65 

vent  individuals  from  acting  at  all,  and  the  same  right  which 
the  citizen  has  to  use  fire  for  household  purposes  exists  in  his 
favor  to  use  the  same  clement  as  a  labor  power  in  machines 
such  as  those  indicated,  subject,  however,  to  such  duty  as  to 
care  and  providence  as  common  prudence  dictates.  And,  indeed, 
to  limit  the  use,  or  extend  the  liability  further,  would  go  very 
far  toward  rendering  the  possession  of  property  rather  to  be 
avoided  than  desired,  and  Avould  tend  to  discourage  any  attempt 
to  utilize  the  power  of  the  elements,  because  of  the  danger 
involved. 

The  proprietor  and  manager  of  machines,  in  themselves  dan- 
gerous, takes  upon  himself  grave  risks,  hazards  his  life  and 
capital,  and  the  public  has  an  interest  in  his  protection  from 
extraordinary  responsibilities.  All  that  can  reasonably  be  ex- 
pected of  any  owner  is  so  to  manage  and  use  his  property  as 
carefully  to  avoid  any  injury  to  the  property  or  rights  of  others, 
and  no  one  can  have  any  ground  upon  which  to  base  a  comj)laint 
of  such  use  and  management,  unless  thereby  he  can  show  him- 
self to  have  been  injured  in  his  property  or  his  rights.^ 

§  65.  Comnion-la'w  rule  as  to  liability  for  fires  caused 
by  locomotives. — The  general  rule  from  the  English  authori- 
ties, Avherc  loss  has  occurred  by  fire  resulting  from  sj^arks 
dropped  by  a  passing  locomotive,  has  been  that  the  fact  of  the 
fire  occurring  in  such  manner  w^as  prima  facie  evidence  of  neg- 
ligence on  the  part  of  the  company,  and  that  to  avoid  liability 
they  must  show  that  they  had  availed  themselves  of  the  best 
appliances  in  use,  and  had  exercised  due  care  to  prevent  the 
accident.^ 

iKeefe  v.  R.  R.  Co.  Sup.  Court,  Minn.  Jan'y,  1875;  Whirly  v.  Whitman,  1 
Head,  610;  Lynch  v.  Newdin,  1  Q.  B.  29;  Birge  v.  Gardiner,  19  Conn.  507. 

2  Such,  at  all  events,  appear  to  be  the  principles  of  the  earlier  cases.  Piggott 
V.  Eastern  Counties  R.  Co.  3  C.  B.  229. — This  case,  decided  in  1840,  has  since  been 
so  often  quoted  and  commented  upon  in  England  and  America  as  to  have  ac- 
quired in  both  countries  an  especial  value.  The  language  of  the  opinion,  by 
Tindal,  C.  J.,  is  :  "The  defendants  are  a  company  intrusted  by  the  legislature 
with  an  agent,  of  an  extremely  dangerous  and  unruly  character,  for  their  own 
private  and  particular  advantage  ;  and  the  law  requires  of  them  that  they  shall, 
in  the  exercise  of  the  rights  and  powers  so  conferred  on  them,  adopt  such  pre- 
cautions as  may  reasonably  prevent  damage  to  the  property  of  third  persons 
through  or  near  which  their  railway  passes.  The  evidence,  in  this  case,  was 
abundantly  sufficient  to  show  that  the  injury  of  which  the  plaintiff  complains 


§  GQ  INJURY    BY    FIRE.  72 

The  subject  has  been  discussed  at  considerable  length  in  the 
more  recent  English  cases,  and  in  them  the  general  principles 
have  been  recognized  that  the  mere  fact  of  the  company  using 
fire  as  a  means  of  locomotion,  from  which  occasional  fires  will 
be  commimicatcd  to  property  near  the  line  of  the  road,  makes 
the  companies  responsible  for  the  damages  caused  thereby,  and 
that  they  Avcre  so  liable,  where  unable  to  show  that  all  avail- 
able means  had  been  exhausted  and  all  proper  appliances  used 
to  prevent  the  occurrence  of  such  accidents.  In  one  case,  the 
rule  was  carried  so  far  as  to  declare  that  the  company,  availing 
itself  of  means  of  locomotion  of  such  a  character  as  necessarily 
to  incur  great  risk  of  doing  damage  to  others,  must  be  deemed 
to  have  accepted  the  risk  and  assumed  the  liability.^  But,  in 
the  Exchequer  Chamber,  the  rule  has  been  so  far  modified  as 
to  admit  that,  the  legislature  having  legalized  this  mode  of  loco- 
motion, the  companies  could  not  be  held  liable  without  proof  of 
gome  deo;ree  of  neo-lect.^ 

§  66.  American  rule  as  to  fires  from,  locomotives. — In 

the  United  States,  railroad  companies  have  been  more  favored 

•was  caused  by  the  emission  of  sparks  or  particles  of  ignited  coke  coming  from 
one  of  the  defendant's  engines  ;  and  there  "vvas  no  proof  of  any  jirecautiou 
adopted  by  the  comjjany  to  avoid  such  a  mischance.  I  therefore  tliink  the  jury 
came  to  a  right  conclusion  in  finding  that  the  company  were  guilty  of  negli- 
gence, and  that  the  injury  complained  of  was  the  result  of  such  negligence. 
There  are  many  old  authorities  to  sustain  this  view  ;  for  instance,  the  case  of 
!Mitchel  V.  Alestree,  1  Vent.  295,  for  an  injury  resulting  to  the  plaintiif  from  the 
defendant's  riding  an  unrulj'  horse  ;  that  of  Bayntine  v.  Sharp,  1  Liitw.  'M,  for 
permitting  a  mad  bull  to  be  at  large  ;  and  that  of  Smith  v.  Felah,  3  Stra.  12(>4, 
for  allowing  a  dog,  known  to  be  accustomed  to  bite,  to  go  unmuzzled.  The  pre- 
cautions suggested  by  the  witnesses,  called  for  the  plaintiff  in  this  case,  may  be 
compared  to  the  muzzle  in  the  case  last  referred  to.  The  case  of  Beauleau  v. 
Fingliam,  in  the  Year  Books,  p.  2,  H.  IV,  fol.  18,  pi.  5,  comes  near  to  this.  There 
the  defendant  was  charged,  in  case,  for  so  negligently  keeping  his  lire  as  to  oc- 
casion the  destruction  of  the  plaintiff's  jiroperty  adjoining.  The  duty  there  al- 
leged was,  'quare  cimi  secundum  lerjem  ct  considtudiem  regni  nostri  Anr/liw  hacte- 
7ias  obtentam,  quod  quilihct  de  eodem  rerjno  ignem  suimi  salvo  ct  secure  custodial,  et 
custodiie,  teneatvr,  ne  per  irjnem  suiini  damnum  aliquod  vicinis  suis  cveniut.'  "  Al- 
though in  Aldridge  v.  O.  "\V.  R.  Co.  3  M.  &  G.  515,  where  a  loss  was  shown  to 
Lave  occuiTed  by  lire  set  by  sparks  falling  from  an  ordinary  engine,  run  in  an 
ordinary  manner,  it  was  held  tliat  the  facts  did  not  necessarily  show  either  neg- 
ligence or  no  negligence  ;  that  the  fact  should  be  left  to  the  jury. 

1  \'aughn  )•.  Taffvale  Railw.  .'?  II.  &  N.  743. 

2  Ibid ;  S.  C.  in  Exchequer  Chan.  5  H.  &  K.  G74  ;  King  v.  Tease,  4  B.  &  Ad.  30. 


73  INJURY    BY    FIRE.  §  66 

than  in  England,  and  tlic  rule  of  their  liability,  for  damage  done 
by  fires  caused  by  sparks  from  locomotives,  is  much  moi-e  ad- 
vantageous to  the  companies  than  it  has  been  in  the  mother 
country.  The  reason  of  this  difference  is  probably  in  the  com- 
paratively high  value  of  money  in  America,  and  the  consequent 
difficulty  of  inducing  the  owners  of  capital  to  employ  it  ujion 
works  of  the  magnitude  of  the  construction  and  equipment  of 
railroads,  but  in  the  creation  and  working  of  which  the  public  is 
so  far  interested  as  to  induce  applications  of  the  law  as  favorable 
to  the  companies  as  is  compatible  with  safety  to  the  public. 

From  whatever  cause  it  may  result,  the  difference  is  manifest, 
and  in  this  country  it  seems  to  have  been  assumed  that  the 
business  of  railways,  on  which  steam  locomotives  arc  used,  be- 
ing lawful,  no  presumption  of  negligence  arises  from  the  fact 
that  sparks  from  the  engines  set  fire  to  adjacent  property.^ 
And  from  a  majority  of  the  later  cases  it  appears  that  to  entitle 
a  plaintiff  to  recover  of  a  railroad  company  damages  on  ac- 
count of  fire  resulting  from  sparks  emitted  from  one  of  its  en- 
gines, the  negligence  of  the  company  in  the  premises  must  be 
shown,  either  directly  or  by  circumstances  tending  to  establish 
it;  such  as  the  absence  or  imperfect  condition  of  a  spark-ar- 
rester, the  excessive  amount  of  steam,  an  unlawful  rate  of  speed, 
or  the  like.     The  mere  fact  that  the  fire  was  occasioned  by  the 

1  Rood  V.  K  Y.  &  E.  R.  R.  18  Barb.  80;  Lyman  v.  Boston  &  W.  Railway,  454; 
Commonwealth  v.  Metropolitan  R.  R.Co.  107  Mass.  2.36. 

In  some  of  the  States  the  statutes  specially  provide  as  to  where  shall  lie  the 
burden  of  ^iroof  of  negligence  in  such  cases ;  but  these  statutes  are,  and  the  rul- 
ing on  them,  exceptional;  as,  for  instance,  Baltimore  Etc.  R.  R.  Co.  v.  Dorsey, 
37  Md.  19.  "Maryland  Code,  Art.  77,  Sec.  1 — making  railroad  companies  re- 
sponsible for  injuries  by  fire  from  locomotives — construed  to  include  a  case  of 
fire  from  cinders  thrown  from  the  engine  by  the  com^iauy's  servant  in  charge, 
and  to  lay  upon  the  company  the  burden  of  disproving  negligence."  So  in  Chi- 
cago V.  Quintance,  58  111.  389:  "Under  the  Illinois  Act  of  1869 — making  the  fact 
that  an  injury  has  been  occasioned  from  sjiarks  emitted  from  a  locomotive  while 
passing  along  the  road,  full  prima  facie  evidence  of  negligence  on  the  part 
of  the  company — it  is  no  rebuttal  to  show  that  the  engine  Avas  originally  con- 
structed with  the  best  and  most  imjiroved  invention  to  prevent  the  escape  of 
sparks.     The  law  imposes  the  duty  of  constant  vigilance  to  keep  in  reiiair." 

Under  such  a  statute  in  Massachusetts,  where  tlie  sparks  from  the  engine 
communicated  fire  to  a  shop,  and  the  wind  drove  the  sparks  from  the  shop 
sixty  feet  across  the  street,  and  set  fire  to  a  house,  it  was  held  that  this  second 
fire  must  be  regarded  as  "communicated"  by  the  company's  engine,  within 
the  statute.  (Hart  v.  Western  Railway,  13  Met.  99;  and  see  also  Fitchburg  R.  R. 
Co.  V.  Charlestown  Mutual  Ins.  Co.  7  Gray,  64.) 


§  G7  INJURY    BY    FIRE.  74 

sparks  docs  not  make  a  prima  facie  case  against  the  company.^ 
But  in  some  of  the  State  Courts  it  has  been  held  that  Avhcn  the 
origin  of  the  fire  has  been  shown  to  be  from  sparks  dropped  by 
a  locomotive,  the  railroad  company  must  show  that  they  used  all 
necessary  precautions  to  avoid  doing  such  mischief.^ 

§  67.  Special  laws  as  to  fire  from  locomotives  vary  the 
general  rule  in  some  of  the  States,  and  conform  to  the  principles 
of  the  English  law,  by  holding  the  companies  to  the  proposition 
that,  in  accepting  the  use  of  an  agency  so  dangerous  as  a  loco- 
motive, they  must  be  deemed  as  accepting  all  losses  which  may 
occur  by  fire  from  sparks  falling  from  their  engines,  unless  they 
can  show  due  care  in  ffuardinsr  ajjainst  the  dano;cr  .  in  some  in- 
stances  the  State  laws  go  even  further,  and,  as  in  Massachusetts, 
make  the  railway  companies  liable  for  all  damage  done  in  this 
way.  It  has,  however,  been  held  that  such  statutory  liability 
only  extends  to  property  of  a  permanent  nature,  and  upon  which 
an  insurance  may  be  effected  ;  and  that  for  injuries  of  this  kind 
to  other  property  the  company  can  only  be  held  liable  where 
there  has  been  on  their  part  negligence,  unskillf  ulness,  or  impru- 
dence in  running  and  conducting  their  engines.^ 

1  Gandy  f.  Chicago  E.  R.  Co.  30  Iowa,  420;  1  Redfield  on  Railways,  452.  "It 
seems  to  have  been  assumed,  in  this  country,  that,  the  business  of  railways  be- 
ing lawful,  no  iiresumption  of  negligence  arises  from  the  fact  of  fire  being  com- 
municated by  their  engines."  It  is  to  be  observed  that  a  tendency  to  establish 
a  standard  of  care  on  the  part  of  the  railroad  companies,  less  high  than  that 
which  has  generally  been  esteemed  just,  is  becoming  manifest  in  some  of  the 
Courts,  and  markedly  in  those  of  the  State  of  Xew  York.  Indirectly,  the  power 
of  great  corporations  manifests  itself  by  the  ability  of  learned  counsel  which  it 
can  command,  and  the  influence  of  arguments  which  such  counsel  can  bring 
to  bear  upon  the  Courts;  it  is,  however,  to  be  hoped  that  such  effects  are  to  be 
but  temporary,  and  that  the  safer  rules  will  be  found  to  be  those  advocated  by 
the  leading  law  journals,  holding  the  companies  to  such  reasonable  care  as  the 
nature  of  their  business  makes  requisite,  to  guard  the  community  from  dan- 
ger. (McGrath  v.  N.  Y.  C.  &  R.  R.  Co.  59  N.  Y.  408;  Albany  L.  J.  Jan.  15tli,  187G, 
p.  3G.) 

2  Bass  V.  Chicago  R.  R.  Co.  28  111.  9;  I.  C.  R.  R.  Co.  v.  Mills,  42  111.  407;  Fitcli  v. 
Pacific  R.  R.  Co.  45  Mo.  322;  Bedford  v.  Hanibal  R.  R.  Co.  4G  ISIo.  45G;  Spaulding 
V.  Chicago  R.  R.  Co.  30  AVis.  110;  Case  v.  Northern  Central  R.  R.  Co.  59  Barb. 
G44. 

8  Chapman  v.  Atlantic  &  S.  L.  R.  R.  Co.  37  Me.  92,  which  was  an  action  for 
damages  by  fire,  caused  by  sparks  from  a  passing  locomotive  to  a  lot  of  posts 
piled  up  near  the  railroad,  upon  a  permission  to  put  them  thereby  the  owner  of 
the  land.  It  was  held  tliat  the  company  was  not  liable,  under  tlie  statute,  for 
loss  of  such  property,  and  that  plaintiff,  to  recover,  must  show  negligence. 


76  IXJUllY    BY    FIRE.  §  G8 

But  groAving  trees,  orchards,  and  all  other  property  which  is 
attached  to  the  soil,  or  is  a  part  of  the  realty,  or  is  of  such  a 
character  as  to  be  permanently  upon  the  premises,  in  such 
manner  as  that  the  company  may  fairly  be  presumed  to  have 
known  that  it  might  be  exposed  to  injury  by  fire  from  their  en- 
gines, when  they  accepted  their  charter  or  built  the  road,  are 
within  the  provisions  of  such  statutes,  and  the  owners  of  such 
property  may,  in  this  connection,  regard  the  railroad  company 
as  a  special  insurer  to  the  extent  prescribed.^ 

§  68.  State  laws  as  to  fires  caused  by  locomotives. — 
The  statute  of  New  Hampshire  is  of  such  a  character,  and  makes 
the  company  liable  for  all  damages  which  may  accrue  to  any 
person  or  property  by  fire  or  steam  from  any  locomotive,  or 
other  engine,  on  a  railroad ;  ^  and  the  liability  of  the  proprietors 
of  a  railroad,  under  this  statute,  for  injuries  caused  by  its  opera- 
tion, extends  to  all  persons  who  may  come  within  its  influence.^ 

So,  in  Maryland,  the  code  provides  that  a  railroad  company 
shall  be  res2:)onsible  for  injuries  by  fire  occasioned  by  its  engines, 
or  carriages,  upon  its  road,  unless  the  company  can  prove,  to  the 
satisfaction  of  the  Court,  that  the  injury  complained  of  was 
committed  without  any  negligence  on  the  part  of  the  company 

1  Pratt  V.  H.  &  St.  L.  R.  R.  Co.  42  ISIe.  579.  The  statute  under  which  this  ac- 
tion was  brought  made  provision  that  "when  injury  is  done  to  a  building  or 
other  property  of  any  person  or  corporation,  by  fire  communicated  by  a  loco- 
motive engine  of  any  railroad  corporation,  the  said  corporation  shall  be  held  re- 
sponsible in  damages  to  the  person  or  corporation  so  injured."  (Stats,  of  Maine, 
1842,  Chap.  0,  Sec.  5. )  But  that  this  liability  might  not  be  too  onerovis  on  the 
company,  the  same  section  provides  that  the  railroad  corporation  should  have 
an  insurable  interest  in  the  property.  The  action  was  for  the  recovery  of  dam- 
ages done  to  growing  timber  on  the  plaintiff's  land,  by  tire  from  the  defendants' 
engine,  distant  almost  three  hundred  feet  from  the  line  of  tlie  railroad,  commu- 
nicated to  materials  growing  and  naturally  lying  on  the  land  between  the  plaint- 
iffs premises  and  the  railroad  track,  and  thence  spreading  to  the  land  of  the 
plaintiff.  The  defendants  relied  upon  Chapman  v.  At.  &  St.  L.  R.  R.  Co.  37  Me. 
92,  above  cited.  In  this  case,  commenting  on  Chapman  v.  At.  &  St.  L.  R.  R.  the 
Court  says :  "  The  analogj'^  between  the  cedar  posts  deposited  some  few  rods  from 
the  railroad,  and  growing  trees,  is  not  strong.  The  former  being  considered,  in 
the  case  cited,  as  movable  property,  having  no  permanent  location,  but  from  its 
nature  left  for  the  purpose  of  being  put  in  some  other  place  within  a  short  time, 
was  not  insurable  property,  so  that  it  would  be  imderstood  as  falling  within  the 
pur-i'lew  of  the  statute." 

2  Sec.  8,  Chap.  148,  General  Stats.  N.  H. 

3  Price  V.  Concord  E.  R.  Co.  51  N.  H.  591. 


§  G9  INJURY   BY    FIRE.  76 

or  its  agents ;  ^  and  in  that  State  it  has  also  been  hehl  that  the 
law  applies  alike  to  cases  where  the  party  complaining  suffers 
loss  directly  from  the  engine  itself,  by  sparks  escaping  through 
the  smoke-stack,  or  from  coals  or  cinders  thrown  from  the  en- 
gine or  lire-box  by  the  servants  of  the  company.^  If  the  party 
injured  establishes,  by  sufficient  proof,  the  fact  that  the  fire 
originated  from  the  fire  in  the  locomotive,  and  that  he  has  suf- 
fered damage  thereby,  then  the  onus  is  cast  upon  the  company 
of  proving  that  such  damage  was  not  the  result  of  carelessness 
or  negligence  on  the  part  of  the  emj^loyees  of  the  company. 

§  69.  Value  of  common-la-w  rule  in  America. — From 
these  laws  above  mentioned,  and  similar  statutory  enactments, 
It  would  appear  that  the  necessity  of  the  rule  which  has  been 
recognized  in  England  is,  to  some  extent,  manifest  in  America, 
and  has  been  there,  also,  regarded  in  the  provisions  inserted  in 
the  law  to  impose  upon  the  railroad  companies  the  taking  of 
such  precautions  as  would,  to  the  greatest  possible  extent,  pre- 
vent the  occurrence  of  loss  so  great  as  is  liable  to  result  from 
the  spread  of  fire. 

Beyond  the  individual  injury  to  him  whose  property  is  imme- 
diately affected  by  the  danger  of  fire  by  passing  locomotives, 
the  public  is  liable  to  great  loss  from  conflagrations  originating 
from  the  use  of  so  dangerous  an  element  as  steam  on  roads,  and 
it  is  not  wholly  apparent  that  the  American  invasions  of  the 
common-law  rule  have  been  judicious.^ 

1  Art.  77,  Sec.  1,  Code  of  General  Laws  of  ISIaryland. 

2  Baltimore  &  O.  R.  R.  Co.  r.  Dorsey,  37  Md.  24;  Woodruff's  Case,  4  Md.  242; 
Lamborn's  Case,  12  Md.  257. 

8  Grand  Trunk  R.  R.  Co.  v.  Richardson,  U.  S.  Sup.  Court,  January,  1870.  "The 
plaintiffs  were  allowed  to  prove  tliat,  at  various  times  during  the  season,  before 
the  lire  occurred,  some  of  the  defendant's  locomotives  scattered  lire  while  pass- 
ing, without  showing  that  either  of  those  which  tlie  plaintiffs  claimed  communi- 
cated the  lire  were  among  tlie  number,  and  without  showing  that  tlie  locomotives 
were  similar  in  make,  state  of  repair,  or  management,  to  those  claimed  to  have 
caused  the  fire.     Held,  that  the  evidence  was  admissible." 

This  case  was  from  Vermont,  under  a  statute  providing  that  in  case  of  fire 
communicated  by  locomotives  the  company  should  be  responsible,  unless  it 
showed  due  care. 

In  Massachusetts,  imder  a  similar  statute,  it  was  held  that  tlie  company  was 
responsible  for  all  negligent  injuries  so  communicated,  whether  proximate  or 
remote.     (Hart  v.  R.  R.  (Jo.  13  ISIet.  'M;  Albany  L.  J.  Feb.  5th,  187(5,  p.  8i).) 

liedlield  on  Railways,  Vol.  1,  p.  450.     "We  cannot  forbear  lo  add  that  the  in- 


77  INJURY    BY    FIRE.  §  70 

§  70.  Burden  of  proof  of  negligence. — The  question 
wlictlicr  negligence  us  to  the  construction  and  manao'cnient  of 
«i  locomotive,  is  to  be  implied  from  the  fact  of  fire  haviiii^  es- 
caped from  it,  by  which  i)roperty  is  destroyed,  so  as  to  cast  the 
burden  upon  the  company  of  showinj^  that  it  was  px'operly  con- 
structed and  properly  managed,  is  one  with  respect  to  which 
there  seems  to  be  a  clear  and  decided  conflict  of  authority. 
The  rule  of  the  English  Courts,  and  that  of  many  of  the  Amer- 
ican States,  is  that  the  burden  of  proof  rests  upon  the  company 
when  property  is  thus  shown  to  have  been  destroyed.^ 

And  upon  the  converse  of  the  proposition  it  has  been  con- 
tended that  the  statute  of  6  Anne,  Chap.  3,  Sec.  6,  enacted  in 
1807,^  providing  that  no  action  shall  be  maintained  against  any 
in  whose  house  or  chamber  any  fire  shall  accidentally  begin,  and 
the  statute  of  14  Geo.  Ill,  Chap.  78,  Sec.  86,  Avhich  ordains  that 
"  no  action,  suit,  or  process  whatever,  shall  be  had  against  any  per- 
son in  Avhose  house,  chamber,  stable,  barn,  or  other  building,  or  on 
whose  estate,  any  fire  shall,  after  the  24th  day  of  June,  1784, 
accidentally  begin,  nor  shall  any  recompense  be  made  by  such 
person  for  any  damage  thereby,  any  law,  usage,  or  custom  to  the 
contrary  notwithstanding,"  were  adopted  by  the  several  States 
as  a  part  of  the  common  law,  and  that   at  least  the  burden  of 

terference  of  the  legislatures  upon  this  subject  in  many  of  the  American  States  " 
(making  the  comi')ames  liable,  and  throwing  on  them  the  onus  of  showing  absence 
of  carelessness,  etc.)  "seems  to  us  an  indication  of  the  public  sense,  in  favor  of 
placing  the  risk  in  such  cases  upon  the  party  in  wliose  power  it  lies  most  to 
prevent  such  injury  occurring.  There  seems  to  us  both  justice  and  policy  in  the 
English  rule  on  the  subject." 

1  Albridge  v.  G.  W.  R.  Co.  3  Man.  &  Gr.  515  (42  E.  C.  L.  K.  272);  Piggott  v. 
Eastern  Counties  R.  Co.  3  Man.  Gr.  &  Scott,  229  (54  E.  C.  L.  R.  228);  Gibson  r. 
Southeastern  R.  Co.  1  Foster  &  Finl.  23;  Ellis  v.  P.  &  R.  R.  R.  Co.  2  Ird.  Law, 
138;  Herring  v.  W.  &  R.  R.  R.  Co.  10  Id.  402;  Hugett  v.  P.  &  R.  R.  R.  Co.  23 
Penn.  St.  373;  Hull  v.  S.  V.  R.  R.  Co.  14  Cal.  387;  Bass  v.  C.  B.  &  Q.  R.  R.  Co.  28 
111.  9;  111.  C.  R.  R.  Co.  v.  Mills,  42  111.  407;  McGreadyu.  R.  W.  Co.  2  Strobh.  Law, 
356;  Cleveland  v.  G.  T.  R.  R.  Co.  42  Vt.  449;  B.  &  L.  R.  R.  v.  Woodruff,  4  Md. 
242;  Spaulding  v.  Ch.  &  K  W.  R.  R.  Co.  33  Wis.  582. 

"  Tlie  fact  that  damage  was  caused  by  fire  escaping  from  a  locomotive  engine 
creates  a,  presumption  that  the  engine  was  defective  in  construction  or  condition, 
which  throws  upon  the  railroad  company  the  burden  of  proving  the  contrary. 
Such  i:)resumption  is,  however,  but  a  jiresumption  of  law;  and  it  is  for  the 
Coiirt,  not  the  jurj"^,  to  determine  the  amount  and  character  of  the  proof  neces- 
sary to  overcome  it."  This  case  was  decided  in  1873,  with  all  the  older  decisions 
considered  upon  full  argument,  the  case  being  in  the  Supreme  Court  for  the 
second  time. 

2  1  Bl.  Com.  431. 


§  71  INJURY    BY    FIRE.  78 

proof  of  negligence  'vvas  upon  the  plaintiff ;  that  defendant  be- 
ing engaged  in  a  legitimate  business,  the  conduct  of  which  re- 
quired the  use  of  fire  in  such  manner  as  that  some  danger  of 
setting  fire  was  necessarily  incurred,  the  plaintiff  must  show  neg- 
ligence in  the  construction  or  management  of  defendant's  en- 
gine,  and  that  the  fact  that  fire  gets  out  from  the  locomotive 
does  not  make  a  prima  facie  case  of  negligence  against  the 
company.^ 

§  71.   Duty  of  railroad  company  to  guard  against  fire. 

— But  Avhatever  may  be  the  rule,  if  there  is  one  applicable,  as 
to  burden  of  proof,  the  law  is  such  that  railroad  companies,  in 
the  construction  of  their  engines,  are  bound  not  only  to  employ 
all  due  care  and  skill  for  the  prevention  of  mischief  arising  to 

1  R.  R.  Co.  V.  Yeiser,  8  Barr.  (Penn.)  3GG;  Turnpike  Co.  v.  R.  R.  Co.  54  Renn.  St. 
349;  Lansing  v.  Stone,  37  Barb.  18;  Burrouglis  v.  R.  R.  Co.  15  Conn.  124;  Para- 
more  V.  R.  R.  Co.  31  Ind.  145;  Rood  v.  R.  R.  Co.  18  Barb.  80;  Sheldon  v.  R.  R. 
Co.  4  Kern.  224;  Opinion  by  Hubbard,  J. ;  Field  r.  R.  R.  Co.  32  N.  Y.  349;  Smitli 
V.  R.  R.  Co.  37  Mo.  294,  in  Avhich  the  jwoposition  was  most  strongly  stated,  and 
it  was  held  that  "in  an  action  for  damages  against  a  railroad  for  negligently 
managing  its  engines,  so  that  fire  was  communicated  to  the  standing  crop  and 
grass  of  i^laintiff,  the  l.)urden  of  proof  is  uixjn  the  jilaintiff  to  show  that  the  lire 
was  caused  by  Ihe  negligence  or  want  of  care  of  the  defendant.  There  is  no 
legal  iiresumption  of  negligence  in  such  cases — it  must  be  shown  as  a  matter  of 
fact." 

These  cases  are  decided  upon  the  api^lication  of  the  general  principle  that 
the  use  of  locomotives  is  lawful;  that  an  action  does  not  lie  for  a  reasonable  ex- 
ercise of  one's  right,  though  it  be  to  the  injury  of  another  (P.  &  R.  R.  R.  Co. 
V.  Yeiser,  2  Am.  R.  R.  Cases,  325;  Burroughs  r.  N.  R.  R.  Co.  2  Am.  R.  R.  Cas.  30; 
Rood  V.  N.  Y.  &  E.  R.  R.  Co.  18  Barb.  80);  and  that  a  railroad  company,  be- 
ing in  the  lawful  use  of  appliances  to  carry  on  its  business,  to  which  is  necessa- 
rily incident  a  risk  of  setting  fire,  the  plaintiff  against  the  comjiany  must  take 
the  aflirmative  upon  the  issue  of  negligence.  (Indianapolis  Etc.  R.  R.  Co.  v. 
Paramore,  31  Ind.  143;  P.  &  R.  R.  R.  Co.  v.  Yeager,  73  Penn.  St.  121.)  "A  party 
is  not  answerable  in  damage  for  the  reasonable  exercise  of  a  right,  imless  upon 
l^roof  of  negligence,  unskillfulness,  or  malice.  Buildings  were  burned  by  sparks 
from  a  locomotive  used  in  the  ordinary  way  u^ion  a  railroad ;  in  a  suit  by  the 
owner  against  the  company,  held,  there  being  no  evidence  to  justify  an  infer- 
ence of  negligence,  that  the  jury  should  have  been  instructed  to  find  for  de- 
fendant." Rood  V.  N.  Y.  &  E.  R.  R.  Co.  IS  Barb.  87,  in  which  it  Avas  held  that 
authority  to  run  a  steam-engine  is  an  authority  to  emit  sparks  therefrom.  So  in 
Garrett  r.  N.  AV.  R.  Co.  o(i  Iowa,  121,  it  was  held  that  the  mere  fact  that  fire  was 
caused  by  sparks  from  a  locomotive  does  not  establisli  a  i^rima  facie  case  of  neg- 
ligence against  the  company,  but  that,  as  in  the  nature  of  the  case,  the  plaintiff 
must  labor  imder  difliculties  in  making  jiroof  of  negligence,  it  may  be  estab- 
li^]lcd  by  circumstances  bearing  more  or  less  directly  on  the  case,  which  might 
not  bo  .satisfactory  in  other  cases  free  from  such  diflieulties  and  open  to  clearer 
proofs. 


79  INJURY    BY    FIIIE.  §  71 

the  property  of  others  by  the  emission  of  sparks,  or  any  other 
cause,  but  they  are  also  bound  to  avail  themselves  of  all  the 
discoveries  which  science  lias  put  within  their  reach  for  that 
purpose,  provided  they  are  such  as,  under  the  circumstances,  it 
is  reasonable  to  require  the  companies  to  adopt ;  ^  and  if  fires  oc- 
cur by  sparks  from  a  locomotive,  the  company  must  be  prepared 
to  show  that  the  engine  was  properly  provided  with  such  appli- 
ances. The  reasons  given  for  requiring  the  companies  to  show 
that  this  duty  has  been  performed  on  their  part,  and  that  the 
agents  and  employees  of  the  road  know,  or  at  least  are  bound 
to  know,  that  the  engine  is  properly  equipped  to  prevent  fire 
from  escaping,  and  that  they  know  whether  any  mechanical  con- 
trivances were  employed  for  that  purpose,  and  if  so  what  was 
their  character  ;  whilst,  on  the  other  hand,  persons  not  connected 
Avith  the  road,  and  who  only  see  trains  passing  at  a  high  rate  of 
speed,  have  no  such  means  of  information,  and  the  same  is  in- 
accessible to  and  cannot  be  obtained  by  them  without  great 
trouble  and  expense,  and  then   often  as  a  favor  from  the  com- 

1  Dimmock  et  al.  v.  N.  S.  R.  R.  Co.  4  Foster  &  Finlason,  10G4.  The  rule  in  the 
English  Courts  is  thus  stated:  The  company,  in  the  construction  of  its  en- 
gines, must  take  all  due  care,  and  avail  itself  of  all  the  appliances  which  science 
has  put  within  its  reach,  provided  it  is,  under  the  circumstances,  reasonable  to 
require  them  to  adopt;  and  the  test  is  the  comparative  degree  of  the  risk  on  the 
one  hand,  and  the  expense  or  practical  inconvenience  on  the  other.  It  is  for  the 
jury  to  draw  the  line,  and  if,  in  the  case  before  them,  the  jury  lind  that  there 
were  precautions  which,  under  the  circumstances,  it  would  have  been  reason- 
able to  reqiiire  the  company  to  adopt,  then  the  non-adoi:)tion  of  these  jirecau- 
tions  would  be  negligence  on  their  part.  With  reference  to  tliat  question  the 
jury  should  consider  the  evidence  of  tlie  scientific  and  practical  witnesses,  on 
one  side  and  the  other,  and  decide  the  proposition  by  the  pi'epouderance,  and 
especially  as  to  the  practical  value  of  the  appliances  which  it  is  claimed  the 
company  ought  to  have  adopted. 

In  the  American  Courts  this  decision  is  quoted,  approved,  and  made  the  basis 
of  the  rule  as  to  employment  of  appliances  to  prevent  escape  of  sparks  so  as 
to  cause  damage  by  fire  to  property.  (Spaulding  v.  C.  Etc.  R.  R.  Co.  30 
Wis.  110;  Bedell  v.  L.  I.  R.  R.  Co.  44  X.  Y.  3G7;  Cleveland  v.  Grand  Trunk  R. 
E.  Co.  42  Vt.  449. )  The  rule  is  given  in  Shearman  &  Redlield  on  Negligence, 
Sec.  322.  A  railroad,  authorized  to  use  steam  power,  "  has  necessarily  the  right 
to  use  fire  as  a  means  of  generating  steam,  and  is  not  liable  for  injuries  by 
sparks  or  coals  escaping  from  its  locomotives,  if  it  has  adopted  every  known 
l^recaution  against  such  accidents;  though  it  will  be  liable  therefor  if  such  pre- 
cautions be  not  adopted.  It  is  not  meant  by  this  that  the  comjiany  will  be 
thus  liable,  on  simple  proof  that  an  invention  was  in  existence,  by  the  use  of 
which  the  injury  might  have  been  prevented.  It  must  appear  that,  before  the 
time  of  the  injury,  the  invention  had  come  into  common  use,  and  had  been  aj)- 
proved  by  experience." 


§  '''t  INJURY    BY    FIRE.  80 

pany,  which,  under  the  circumstances,  the  company  woukl  be 
very  likely  to  Avithhold.  So,  also,  it  would  seem  that  the  duty  is 
imposed  upon  the  company  of  so  keeping  its  road-bed,  and  lands 
immediately  adjoininii:,  free  from  such  inflammable  material  as 
would,  in  conjunction  with  the  use  upon  the  engine  of  an  cle- 
ment so  generally  dangerous  as  fire,  create  a  special  risk  to  those 
Avho  had  property  in  the  vicinity.  It  will  not  be  a  sufficient  de- 
fense to  an  action  against  a  railroad  company  for  damage  by 
fire  from  its  locomotive  alone,  to  shoAV  that  the  engine  was 
properly  constructed  and  run,  if  it  appear  that  the  lands  of  the 
company  through  which  the  road  runs,  or  the  road-bed  itself, 
are  so  covered  with  dry  grass,  forest  leaves,  or  other  inflammable 
substances,  to  such  an  extent  as  to  render  the  danger  of  fire  on 
that  account  peculiar,  it  being  made  to  appear  that  the  confla- 
gration was  caused  by  sparks  falling  upon  such  inflammable 
substances.^ 

1  "WTiere  the  company  permits  dry  grass  to  remain  on  tlie  strip  of  land  be- 
tween the  track  and  tlie  fence,  and  the  dry  grass,  being  there,  constitutes  a  means 
of  fire  from  the  engine,  extending  to  and  injuring  jiropcrty ;  tlie  fact  of  the  grass 
so  being  permitted  to  remain  is  one  proper  for  the  jury  to  consider  in  an  action 
against  the  companj'  for  damages  resulting  from  the  fire.  If  the  dry  herbage 
was  permitted  to  remain  standing  in  such  quantities  as  shows  negligence,  evi- 
dence of  that  fact  would  ordinarily  be  admissible.  (Henry  v.  S.  P.  R.  R.  Co.  Sup. 
Ct.  Cal.  August  2,  1875;  Sill  v.  Reese,  47  Cal.  .'Ml;  Flinn  v.  R.  R.  Co.  40  Cal.  11.) 

Spaulding  v.  C.  &  N.  R.  R.  Co.  30  Wis.  123.  On  the  trial  of  this  cause  the  fol- 
lowing instruction  was  asked :  "  The  defendant  Avas  not  bound  to  burn  the  dry 
vegetation  on  any  portion  of  its  way,  when,  by  reason  of  the  direction  or  force  of 
the  wind,  or  other  attendant  circumstances,  it  would  endanger  its  own  property, 
or  the  property  of  others,  so  to  do."  This  request  was  refused,  and,  on  appeal, 
the  Supreme  Court  said:  "It  seems  to  have  been  taken  for  granted,  on  the  trial 
below  and  in  this  Court,  that  the  only,  or  the  most  practicable  and  usual  metliod 
resorted  to  1)y  railroad  companies  to  remove  the  dry  grass  or  other  inllammablo 
materials,  such  as  forest  leaves,  etc.,  accumulating  on  tlu;  right  of  way,  is,  under 
the  supervision  of  workmen,  to  burn  them  on  the  way,  on  either  side  of  the 
track,  to  the  fences  or  boundaries  of  the  company's  land  on  either  side.  To 
carry  on  this  operation  with  safety,  many  things  must  be  taken  into  account, 
and  especially  the  course  of  tlie  wind,  when  that  is  blowing;  the  fire  must  be 
set  to  windward  of  the  track,  which  will  interrupt  its  passage,  and  not  be  taken 
in  the  direction  of  the  adjoining  fields  on  the  side  where  set,  from  which  mis- 
chief and  the  destruction  of  property  might  ensue.  There  was  some  evidence, 
and  enough,  we  think,  to  have  carried  the  question  to  the  jury,  whether  the  fail- 
ure of  the  company  to  remove,  in  this  way,  the  dry  grass  and  leaves  from  the 
place  where  the  fire  was  shown  to  have  been  communicated,  was  or  was  not 
negligence,  or  an  omission  of  duty  on  its  part,  for  which  it  should  be  held  to  re- 
spond in  damages  to  the  plaintiff  in  this  action.  The  duty  of  removing  such 
inflammable  materials  from  the  way  owned  by  the  company,  impli(;s,  as  of 
course,  that  the  company  is  to  have  reasonable  time  and  opportunity  for  that 


81  INJURY    BY    FlIiE.  §  72 

§  72.  Care  required  in  running  locomotive. — From  the 
principles  involved,  it  necessarily  results  tliat  the  company  must 
not  only  keep  its  engines  properly  equipped  with  all  available 
appliances  to  pi'cvent  damage  by  fires  from  sparks,  hut  must 
also  compel  employees  to  such  management  and  control  of  the 
fires  on  the  locomotives  as  are  most  conducive  to  safety  in  the 
use  of  the  dangerous  element  used  for  making  motive  power. 
For  any  carelessness  by  the  company's  employees  in  using 
the  fire,  cleaning  the  grates,  emptying  cinders  from  the  engine, 
or  otherwise,  the  company  must  be  held  answerable  for  any  dam- 
age to  property  which  may  result.^ 

And  even  without   such  carelessness,  the  company  may  be 

purpose,  if  tlie  accumulation  of  snch  materials  lie  uiiavoi<lal)]e,  or  if  uot  suffered 
or  caused  by  the  neglect  of  the  company. 

"  The  testimony  fails  to  show  that  there  was  any  other  fit  or  feasible  means  of 
removing  the  combustible  materials  than  by  burning,  to  which  the  company 
should  have  resorted  when  that  method  became  impracticable.  The  testimony 
does  not  clearly  show  that  no  reasonable  opportunity  had  been  presented  for 
burning  at  that  place,  but  it  tends  to  show  that,  and,  at  the  same  time,  to  show 
that  it  was  a  place  more  than  ordinarily  exposed  to  danger  from  fire,  and  which 
on  that  account  should  have  received  the  earliest  attention  jiracticable  on  the 
part  of  the  workmen  and  servants  of  the  comjiany.  On  the  wliole,  we  are  of 
the  opinion  that  the  testimony  was  such  that  it  should  have  been  submitted  to 
the  jury  to  say  whether  there  was  any  negligence  on  the  part  of  the  company 
in  this  particular  or  not,  and  that  the  instruction  under  consideration  should, 
for  this  reason,  have  been  given."  (Bass  v.  C.  B.  &  Q.  R.  E.  Co.  28111.  17.) 
"And  we  hold,  also,  that  it  is  negligence  in  a  railroad  company  to  suffer  dry 
gra.ss  or  rubbish  to  be  on  their  right  of  way." 

1  Where  running  in  a  place  of  peculiar  exposure  to  fire,  extra  diligence  is  re- 
quired of  a  railroad.  (Fero  v.  B.  &  S.  L.  R.  E.  Co.  22  N.  Y.  209  ;  Rood  v.  N.  Y. 
&  E.  R.  R,  Co.  18  Barb.  80  ;  Field  v.  K  Y.  C.  R.  R.  Co.  32  K.  Y.  339.) 

Evidence  of  dropjiing  coals  on  the  track,  and  thereby  causing  fires,  is  proper 
for  the  jury.  (Sheldon  r.  H.  R.  R.  Co.  14  K  Y.  218  ;  Hinds  r.  Barton,  25  X.  Y. 
5ii  ;  Field  r.  R.  R.  Co.  32  N.  Y.  339.) 

"At  a  time  of  continued  and  extreme  drouth,  while  a  strong  wind  was  blow- 
ing from  the  land  of  the  defendant  toward  the  adjoining  woodland  of  plaintiff, 
coals  were  negligently  dropjied  from  one  of  defendant's  engines,  which  set  fire 
to  a  tie.  The  fire  was  communicated  to  an  accumulation  of  weeds  and  grass 
and  rubbish  which  defendant  had  suffered  to  gather  by  the  side  of  its  track  ; 
thence  it  spread  to  the  fence,  and  on  to  plaintiff's  woodland,  burning  and  de- 
stroying Ins  trees,  etc.  In  an  action  for  the  damages,  held  that  the  question.s^  as 
to  whether  the  injury  was  a  probable  consequence  of  the  negligent  acts  and 
omissions,  were  properly  submitted  to  the  jury,  and  that  the  evidence  was  suffi- 
cient to  sustain  a  verdict  for  plaintiff.  Also  held  that  the  question  of  negligence 
did  not  consist  merely  in  suffering  the  coals  to  drop  from  tlie  engine  ;  but  that 
that,  together  with  the  dryness  of  the  atmosiiherc  and  earth,  the  strength  and 
direction  of  the  wind,  the  permitted  accumulation  of  weeds,  rubbish,  and  grass, 
were  all  constituents  of  the  act,  and  went  together  to  make  it  negligent." 

Farm — 6. 


§  73  INJURY   BY    FIPvE.  82 

held  responsible  for  damages  from  fire  caused  by  sparks  from 
locomotives,  if  it  appear  that  the  engine  was  being  overAvorked 
to  such  an  extent  as  to  render  futile  the  precautions  usually  em- 
ployed to  guard  against  the  escape  of  sparks  b}-  appliances  or- 
dinarily suiiicicnt  to  guard  against  that  danger. 

It  has  come  to  be  a  recognized  fact  that  when  trains  arc  run 
at  a  liigli  rate  of  speed,  by  brisk  fires  in  the  engines  being  main- 
tained, the  danger  from  the  escape  of  sparks  is  correspondingly 
increased.  It  is  not  lav/,  therefore,  that  trains  should  not  be 
run  rapidly  ;  but,  from  the  premises,  it  does  result  that  the  lia- 
bility of  the  company  for  dan:iages  caused  by  fii-es  from  the  en- 
gine is  made  greater  in  proportion  to  the  increase  of  danger, 
and  the  precautions  used  must  also  be  correspondingly  in- 
creased.-' 

§  73.   Fires  must  be  extinguished  -when  discovered. — 

If  a  fire  l)c  set  by  sparks  from  a  locomotive,  and  the  employees 
of  the  railroad  company  see  or  otherwise  be  made  awai'C  of  the 
fact,  they  ought  to  take  all  proper  and  available  means  to  pre- 

1  liammond  v.  Southeastern  Railw.  Co.  ]Maidstono  Spring  Assizes,  1845,  before 
Lord  Dcnman,  cited  in  Kedlield  on  Railways,  Vol.  1,  454.  "Tlie  testimony  in 
this  case  sliowed  tliat  the  danger  of  emitting  sparks  is  very  much  increased  by 
overtasking  the  engine,  and  that  it  may  be  altogether  avoided  by  shutting  off 
th(>  steam  in  passing  a  place  where  there  is  danger  from  sj^arks,  or  that  the  dan- 
ger may  be  guarded  against  l)y  mcclianical  contrivances."  (Henry  r.  S.  P.  R. 
R.  Sup.  Ct.  Cal.  Aug.  2,  1875.) 

"Tlie  Court  l_>elow  jirop^rly  refused  a  nonsuit.  We  think  there  was  evidence 
tending  to  prove  that  the  fire  was  not  the  probable  result  of  tlic  ordinary  work- 
ing of  a  locomotive  under  like  circumstances,  and,  in  such  case,  evidence  that 
the  fire  was  communicated  from  the  engine  is  evidence  of  negligence  sufficient 
to  go  to  the  jury. 

"There  was,  however,  evidence  of  specific  negligence,  in  that  there  was  evi- 
dence tending  to  prove  that  tlie  particular  engine  was  required  to  perform  ser- 
vice whicli  caused  it  to  labor  and  emit  more  sparks  than  if  a  less  number  of  cara 
had  been  attached  to  it."     (Walford  on  Railways,  183,  184,  and  notes.) 

T.  P.  &  AV.  R.  R.  Co.  V.  Pindar,  53  111.  447.  "  Railroad  companies  are  required 
to  provide,  and  keep  constantly  in  use  and  in  proper  repair,  tlie  most  approved 
machinery  to  prevent  the  escape  of  lire  from  tlieir  engines,  to  the  injury  of  prop- 
erty along  their  lines.  If,  notwitlistanding  tlie  use  of  such  macliinery,  sparks 
escape,  and  fire  is  thereby  communicated  to  buildings,  a  company  will  not  be 
deemed  guilty  of  negligence  unless  the  damage  results  from  the  neglect  of  some 
otlier  duty.  But  even  with  tlie  use  of  the  best  appliances  to  prevent  the  escape 
of  lire,  and  sparks  are  produced  to  a  dangerous  extent,  the  company  will  bo 
deemed  guilty  of  gross  negligence."  (Chicago  v.  Quintancc,  58  111.  .')8i).)  Tho 
use  of  wood  in  a  coal-burning  engine,  in  a  dry  and  windy  time,  held  to  be  in- 
dicative of  gross  negligence.     (Chicago  v.  Quintance,  58  111.  38!).) 


83  INJURY    BY   FIRE,  §  73 

vent  th«  spread  of  the  conflagration  and  damage  thereby.  If  It 
be  possible  for  men  on  the  train  to  do  so,  they  shouhl  pnt  (jut 
tlic  fire.  They  sliouhl  even  stop  the  train  h)ng  enough  to  do  so, 
wlien  by  so  stopping  they  do  not  incur  the  danger  of  collision 
Avith  other  trains  ;  and  even  if  it  is  prudent  or  necessary  for  tlie 
train  to  move  off,  men  should  be  left  or  sent  back  from  the  next 
station  to  put  the  fire  out. 

The  duty  is  general  upon  the  railroad  company,  by  its  em- 
ployees, to  take  all  the  precautions  to  prevent  injury  to  property 
of  others  which  sensible,  prudent  persons  would,  under  similar 
circumstances,  use  to  prevent  the  communication  of  fire  to  their 
property.^ 

1  Cook  v.  C.  T.  Co.  1  Denio,  91 ;  Field  v.  K  Y.  C.  R.  R.  Ca  32  N".  Y.  339  ;  Tolke 
r.  C.  &  N.  R.  R.  Co.  2G  Wis.  538,  by  Cole,  J. :  "Among  other  instructions  asked 
by  the  plaintiff,  which  the  County  Court  refused  to  give,  was  one  in  substance 
to  tlie  effect  that  if  the  jury  found  from  the  evidence  that  the  engine  set  a  fire 
on  the  track  of  the  roadway,  on  the  day  named,  adjoining  the  premises  of 
the  jilaintiff,  and  that  the  servants  of  the  defendant,  in  charge  of  sucli  en- 
gine and  train,  knew  such  fire  to  be  so  set  and  kindled,  then  the  servants 
of  the  company  were  bound  to  use  ordinary  care  and  diligence  to  extin- 
guish the  fire  ;  and  if  the  servants  of  the  defendant  knew  the  fire  was  so  set 
at  or  about  the  time  it  was  so  set,  and  used  no  efforts  whatever  to  extinguish 
such  fire,  but  went  away  and  left  it  burning,  such  conduct  on  the  i^art  of  the 
servants  of  the  company  was  evidence  of  negligence,  and  ought  to  be  taken 
into  consideration  in  determining  the  question  whether  the  train  was  managed 
with  due  care  with  regard  to  fire.  We  think  the  instruction  should  have  been 
given.  It  apjiears  that  the  train  in  question  was  a  gravel  train,  engaged  in  the 
repair  of  the  road-bed,  and.  had  about  twenty-eight  men  on  the  train.  And 
even  if  it  had  been  prudent  and  necessary  for  the  train  itself  to  move  off  to 
the  proper  station  as  soon  as  it  was  unloaded,  in  order  to  avoid  collision  with 
other  trains,  what  difficulty  was  there  in  leaving  behind  a  sufficient  number  of 
men  to  put  out  the  fire  ?  It  was  a  dry  time  in  the  summer,  when  a  fire  kindled 
upon  the  track  of  the  road  would  very  likely  spread  to  the  adjoining  premises. 
Men  of  ordinary  care  woiild,  under  such  circumstances,  use  jiroper  diligence  to 
prevent  the  fire  from  communicating  to  the  i^roperty  of  others.  And  if,  accord- 
ing to  the  hypothesis  upon  which  the  instruction  is  framed,  the  employees  of  the 
company  knew  that  a  fire  had  been  kindled  on  the  track  by  means  of  the  loco- 
motive, they  were  certainly  bound  to  use  ordinary  care  and  diligence  to  extin- 
guish it ;  and  if  they  used  no  efforts  whatever  to  extinguish  it,  but  went  away 
and  left  it  burning,  such  conduct,  we  think,  would  amount  to  gross  negligence." 

These  remarks  are  made  with  reference  to  the  character  and  condition  of  the 
train  in  question.  "In  tlie  case  of  an  ordinary  freight  or  passenger  train,  even 
if  the  employees  knew  the  locomotive  had  kindled  a  fire  upon  the  track,  it 
might  not  be  possible  to  stop  the  train  and  put  it  out,  or  leave  behind  any  one 
for  that  iwrpose.  The  safety  of  the  train  and  passengers  would  be  a  matter  of 
first  importance,  and  negligence  could  not  necessarily  be  Imputed  if  the  serv- 
ants left  the  fire  burning,  without  using  any  efforts  to  extinguish  it.  I5ut  tlio 
instruction,  when  applied  to  the  facts  of  the  case,  raises  a  very  different  ques- 
tion."    So  in  Bass  v.  C.  B.  &  Q.  R.  R.  Co.  28  111.  19.     A  case  in  which  sparks 


^  74  IXJURY   BY   FTEE.  84 

§  74.  Proximate  and  remote  damages  by  fire  from 
locomotive. — The  fact  that  fire  from  ii  locomotive  avus  not 
communicated  directly  to  the  property  destroyed  is  no  defense 
to  an  action  for  damages.  If  it  appear  that  sparks  have  es- 
caped, or  fire-brands  or  coals  have  been  throAvn  or  dropped 
from  an  engine,  and  that  thence  fire  has  got  out  and  spread, 
it  will  be  of  no  avail  for  the  company  to  claim  that  damage 
therefrom,  for  which  an  action  will  lie,  niixst  be  confined  to  the 
immediate  result  upon  the  premises  adjoining  the  roadway. 

It  being  shown  that  the  fire  originated  by  reason  of  negli- 
gence, the  fact  that  property  destroyed  is  remote  from  the 
railroad,  that  the  fire  reached  it  only  after  passing  through  in- 
tervening lands,  does  not  prevent  the  owner  from  recovering 
damages  from  the  railroad  company  on  the  ground  that  the 
cause  of  loss  is  too  remote.^ 

from  a  locomotive  set  fire  to  stubble  in  a  wheat-field  tbroiigli  -whicli  the  road 
ran,  and  thence  sjiread  to  plaintiff's  wheat  stacks.  Plaintiff  being  away  from 
his  home,  his  neighbor  tried  to  extinguisli  the  flames,  but  could  not,  and  called 
upon  the  employees  of  the  company  who  were  near  ;  informed  them  that  the 
field  was  on  fire  by  sparks  from  one  of  the  company's  engines,  and  that,  unless 
they  helped  liim  put  the  fire  out,  the  stacks  would  be  destroyed.  The  employ- 
ees of  the  company  refiised  to  try  to  put  the  fire  out,  the  stacks  of  grain  were 
destroyed,  and  this  action  brought  against  the  company  for  the  value  of  the 
property  lost  by  the  fire.  The  Supreme  Court  gives  its  opinion  in  these  words  : 
"  Railroad  companies  in  some  of  the  States  maintain,  at  great  expense,  a  regu- 
lar, well  drilled,  and  efficient  jiolice  along  the  line  of  their  roads,  through  culti- 
vated places,  to  protect  the  interests  of  property-holders  from  injuries  such  as 
those  described  in  this  case.  They  feel  and  know,  in  the  use  of  an  element  so 
destructive  as  fire,  they  ought  to  be  bovmd  to  use  the  greatest  precautions. 
What,  then,  shall  be  said  of  these  men,  who  were  on  the  spot  of  the  fire,  who 
refused  to  extinguish  it,  uninfluenced  by  their  duty  to  their  employers  or  by  the 
common  feelings  of  regard  for  the  interests  and  i^roperty  of  another,  which  they 
should  have  manifested,  and  through  which  they  could  have  saved  valuable 
property  from  total  destiaiction  ?  It  presents  a  case  which  will  not  bear  favor- 
able examination,  and  stamps  these  men  with  infamy  and  disgrace,  and  for 
whose  conduct  the  defendant  ought  to  suffer." 

Shearman  &  Eedfield  on  Negligence,  322  :  "It  is  the  duty  of  the  conductor  of 
a  train,  not  carrying  passengers,  nor  pressed  for  time,  to  stop  when  the  train  has 
kindled  a  fire,  and  to  extinguish  it."  (Bass  v.  Chicago  Etc.  E.  E.  Co.  28  111.  9  ; 
I.  C.  E.  E.  Co.  V.  Mills,  42  111.  407  ;  Piggott  v.  E.  C.  E.  E.  Co.  3  C.  B.  229  ;  Fitch 
V.  P.  E.  Co.  45  Jilo.  .322  ;  Bedford  r.  H.  E.  Co.  46  Mo.  456  ;  Spaulding  v.  C.  R.  Co. 
.30  "Wis.  110  ;  Case  v.  N.  E.  E.  Co.  59  Barb.  644.) 

1  Kellogg  V.  C.  &  N.  W.  E.  R.  Co.  26  Wis.  223;  Perley  v.  Eastern  E.  E.  Co. 
98  ]SIass.  417.  "Under  the  instructions,  the  jury  must  have  found  that  the  fire 
wliich  destroyed  the  plaintiff's  property  proceeded  from  defendant's  locomotive, 
and  came  in  a  direct  line,  and  witliout  any  break,  to  tlic  plaintiff's  property. 
But  in  reaching  plaintiff's  land  it  went  across  the  land  of  three  or  four  different 


85  INJURY   BY    riRE.  §  75 

It  has  been  claimed  that  where  a  fire  has,  by  a  locomotive, 
been  set  at  or  near  the  roadway,  a  spread  of  it  thence  may  result 
from  an  increased  wind,  by  accidental  circumstances,  such  as 
accumulations  of  inflsunmable  materials  upon  premises  not  under 
the  control  of  the  company,  and  for  the  presence  of  Avhich  the 
company  could  not  be  held  responsible,  and  that,  therefore,  the 
business  of  running  locomotives  being  lawful,  railroad  companies 
ought  to  be  held  only  for  proximate,  and  not  remote  results, 
from  the  escape  of  fire,  and  such  reasoning  is  not  entirely  with- 
out foundation  upon  principle  and  precedent.-^ 

§  75.  Railway  companies  liable  for  damage  by  spread 
of  fire. — The  general  tenor  of  the  later  decisions  is  against  the 
railroad  companies,  upon  the  jjroposition  of  their  liability  being 
confined  to  the  immediate  damage  by  fire  from  locomotives,  and 
the  maxim,  causa  2yroxima  non  remota  spectatur,  is  not  controlled 
by  time  or  distance,  nor  by  the  succession  of  events.  An  cflTi- 
cient,  adequate  cause  being  found,  Avhence  the  damage  has 
ensued,  such  must  be  considered  the  true  cause,  unless  some 

parties,  which  lay  between  plaintiff's  land  and  the  railroad  track,  and  the  dis- 
tance to  the  plaintiff's  land  was  about  half  a  mile.  It  was  fed,  on  its  way,  by 
grass,  stubble,  and  woodland.  The  defendants  contend  that  they  are  not  liable 
for  this  injury,  because  it  was  remotely,  not  proximately,  connected  with  the 
escape  of  the  lire  from  their  engine.  But  it  was  none  the  less  communicated 
from  the  engine  because  the  intermediate  land  belonged  to  other  persons,  nor 
because  tlie  distance  was  half  a  mile.  If  the  land  had  all  belonged  to  plaintiff, 
and  liad  extended  a  mile,  it  would  be  difficult  to  establish  a  line  on  his  land,  and 
to  hold  that  the  statute  gives  Imn  no  remedy  for  the  damage  happening  beyond 
tliat  line.  Xor  does  the  fact  that  there  are  several  owners  make  the  damage  to 
the  plaintiff  remote,  in  the  sense  in  which  that  term  is  used,  as  contradis- 
tinguished from  'direct'  and  'immediate.'" 

1  Ryan  v.  N.  Y.  Central  Railroad  Company,  35  aST.  Y.  210.  In  this  case,  by 
careless  management  of  its  engine,  in  the  city  of  Syraciase,  defendants  set  lire  to 
their  own  wood-shed ;  thence  the  fire  s^n-ead  to  plaintiff's  house,  a  distance  of 
one  hundred  and  thirty  feet,  the  heat  and  sparks  from  the  burning  shed  setting 
fire  to  tlie  house.  The  Court  held  that  the  company  could  not  be  held  for  the 
loss  of  the  house ;  that  if  it  could,  it  might  be  made  an  insurer  of  the  whole  city, 
and  that  the  remoteness  of  the  danger  forms  the  true  rule  on  which  the 
question  should  be  decided,  and  that  the  company  could  only  be  held  for  the 
immediate  result  from  carelessness,  negligence,  or  mismanagement. 

Penn.  R.  R.  Co.  v.  Kerr,  C2  Penn.  St.  353,  in  which,  by  negligence,  fire  was  set 
to  a  warehouse,  and  thence  spread  to  and  consumed  plaintiff's  hotel.  It  was 
held  that  tlie  company  were  not  liable  for  the  loss  of  the  latter.  That  every  one 
has  to  take  the  risks  of  the  vicissitudes  of  organized  society,  and  that  because 
of  the  act  of  negligence  the  first  building  was  set  fire  to,  does  not  make  tlie  com- 
pany liable  for  all  consequences. 


§  7G  IXJURT    BY    FIEE.  86 

other,  independent  of  and  not  incidental  to  it,  can  be  shoAvn  to 
have  intervened  between  it  and  the  result.  The  maxim  includes 
liability  for  all  injuries  which  naturally  result  from  the  wrongful 
act  of  omission  or  commission,  and  the  company  must  take  their 
precautions,  and  make  tliem  extreme,  to  guard  against  the  escape 
of  fire  from  their  engines,  having  in  view  the  fact  that  they  are 
to  be  held  liable,  not  only  for  such  loss  as  may  immediately  en- 
sue, but  also  all  such  as  are  likely  to  result  from  any  neglect 
or  mismanagement  in  the  construction  or  use  of  their  engines,^ 

§  76.  Must  the  farmer  guard  against  fire  from  locomo- 
tives ? — That  he  must  do  so  may  appear  from  the  recognition 
of  the  right  of  the  company  to  use  engines,  the  escape  of  fire 
from  which  is   a  danger  too  obvious  to  be  overlooked  by  any 

1  Safford  v.  B.  &  M.  U.  R.  103  Mass.  583.  In  this  case  a  fire  was  set  by  sparks 
from  a  locomotive  to  wood  piled  against  a  freight  depot  at  a  village  station;  the 
freight-house  and  contents  were  soon  in  a  blaze,  the  wind  rose  and  blew  ciudera 
and  sparks  from  the  burning  depot  to  xilaintiff 's  dwelling-house,  a  distance  of 
nearly  1,G00  feet,  set  fire  to  and  destroyed  it.  Held,  that  the  railroad  company 
was  liable  for  the  loss  of  the  plaintiiT's  house.  (Hart  r.  Vi".  E..  E.  Co.  13  Met. 
99;  Perly  v.  E.  K  E.  Co.  98  Mass.  414;  Quigley  r.  S.  &  P.  E.  E.  Co.  8  Allen,  438- 
40;  Tulerville  v.  Stampe,  1  Ld,  Eaym.  2(54;  Hooknett  v.  C.  11.  E.  Co.  38  N.  H. 
242.)  In  Kellogg  v.  C.  &  N".  W.  E.  E.  Co.  20  Wis.  238,  the  cases  of  Eyan  v.  N. 
Y.  C.  E.  E.  Co.  35  K  Y.  and  Penn.  E.  E.  Co.  v.  Kerr,  G2  Penn.  St.  353,  are  com- 
mented upon,  examined,  and  disapproved,  while  the  converse  of  the  proposition 
therein  stated  is  held  to  be  law,  and  Perley  v.  E.  E.  E.  Co.  98  IMass.  414,  is  ap- 
proved and  followed,  and  in  Perley  r.  E.  E.  E.  Co.  these  eases  from  K ew^  York 
and  Pennsylvania  are  mentioned  with  disapproval  and  dissent.  (Henry  v.  S. 
P.  E.  E.  Sup.  Ct.  Cal.  Aug.  2,  1875.) 

"  It  is  said  that  the  nonsuit  should  have  been  granted,  inasmuch  as  the  fire  was 
not  kindled  in  plaintiff's  field,  but  in  the  field  of  one  Cagney,  an  adjoining  pro- 
prietor, from  which  it  extended  into  the  field  of  the  plaintiff.  The  legal  proposi- 
tion involved  in  the  foregoing  statement  is,  that  if  by  negligence  a  fire  shall 
commence  on  the  premises  of  one  proprietor  and  spread  from  thence  to  those  of 
another,  the  latter  shall  never  have  his  action  against  hiju  guilty  of  the  negli- 
gence. AVe  think  this  proposition  cannot  be  maintained;  to  refute  it,  it  is  not 
necessary  to  establish  the  counter  proposition,  that  the  adjoining  proprietor 
thus  injured  shall  always  recover;  it  may  be  assumed,  perhai^s,  that  a  city  fire 
which  has  its  origin  in  one  building  will  not  ordinarily  extend  throughout  a 
block,  and  yet  a  jury  may  be  justified  in  saying,  Avlien  a  fire  is  started  in  a  field 
which  constitutes  a  portion  of  a  larger  tract  of  dry  grass  or  corn  fully  ripe,  that 
it  will  usually  be  driven  into  another  field,  from  which  the  first  is  sejiarated  only 
by  a  fence  of  boards.  It  is  a  rule,  applicable  to  all  eases  of  mere  negligence,  that 
the  wrongdoer  is  liable  for  proximate  and  not  for  remote  consequences  of  his 
fault."  "AVe  are  still  confident,  considering  the  long,  dry  season  of  California, 
and  the  prevalr-nce  of  certain  winds  in  our  valleys,  that  it  may  be  left  to  a 
jury  to  determine  whether  the  spreading  of  a  fire  from  one  field  to  another  is 
not  the  natural,  direct,  or  proximate  consequence  of  the  original  firing." 


87  INJURY    BY    FIRE.  §   7G 

pi'iulcnt  man  in  the  ordinary  conduct  of  his  affairs.  Thus,  if  it 
is  negligence  for  a  railroad  company  to  leave  dry  grass  and  rub- 
bish to  accvmiulate  upon  the  road-bed  and  the  adjoining  lands  of 
the  company,  it  is  not  clearly  apparent  why  it  is  not  also  negli- 
gence for  the  farmer  to  })errait  such  accumulations  to  occur  on 
his  premises,  immediately  adjoining,  and  subject  to  the  same 
casualty,  and  be  such  contributory  negligence  as  to  prevent  a 
recoveiy  by  him  of  damages  for  loss  by  fire  so  occasioned.^ 
That  one  may  so  use  his  land  as  though  there  was  no  railroad 

1  ""NAHiore  tlie  earelessuess  of  the  plaintiff,  as  well  as  tliat  of  the  defendant, 
oiierated  directly  to  produce  the  injury  complained  of,  the  plaintiff  has  no  right 
to  recover  ;  and,  in  a  case  where  the  defendant  is  entitled  to  and  requests  a 
charge  to  that  effect,  the  refusal  or  neglect  of  tlic  (,'ourt  to  so  instruct  tlie  jury, 
in  unambiguous  terms,  is  error,  for  which  a  judgment  in  favor  of  the  plaintiff 
will  be  reversed."  (R.  R.  Co.  v.  Kiechbairns,  G3  111.  119.)  Dissenting  opinion  of 
Paine,  J.,  in  Kellogg  v.  C.  &  N.W.  R.  R.  Co.  2(3  ATis.  241,  in  which  it  is  said  that, 
as  it  would  be  but  little  trouble  for  a  fanner  to  plow  a  few  furrows  next  the  line 
of  the  road,  and  to  do  so  would  furnish  a  cheap  and  natural  preventive  to  the 
spread  of  lire;  and  so  soon  as  it  is  established  to  be  negligence  in  a  railroad  com- 
pany to  leave  the  dry  grass  and  weeds  upon  its  lands — because,  if  a  fire  should 
occur,  it  might  run  across  the  adjoining  owner's  stubble-field,  and  reach  his 
buildings — it  follows  necessarily  that,  if  plowing  a  narrow  strip  on  those  fields 
would  prevent  the  loss,  and  he,  after  knowledge  of  the  danger,  neglects  to  i^low 
it,  he  should  be  held  guilty  of  a  want  of  ordinary  care.  To  say  that  he  should 
have  taken  that  precaution  does  not  deprive  him  of  the  ordinary  or  beneficial 
use  of  his  property.  It  does  not  impose  on  him  any  burden  or  serious  inconve- 
nience. It  is  iisual  for  farmers  to  jilow  their  land  in  the  fall.  Plowing  is  an  ef- 
fectual preventive  of  the  sjiread  of  lire,  and  it  could  hardly  be  matter  of  serious 
consequence  to  a  farmer  whether  he  i^lowed  a  strip  sufiicient  for  this  purpose  at 
one  time  or  another.  To  determine  the  degree  of  negligence  in  snch  cases,  re- 
gard should  be  had  to  the  facility  and  effectiveness  of  the  means  of  prevention 
which  the  jiarties  respectively  possess  ;  and  I  think  it  more  clear  that  an  owner, 
whose  buildings  are  only  endangered  by  reason  of  the  liability  of  fire  to  run  a 
half  mile  across  his  stubble-fields  to  reach  them,  is  guilty  of  negligence  if  he 
neglects  the  simple  i^recaution  of  plowing  a  strip  sufficiently  wide  to  iirevent  it, 
which  he  might  do  without  any  serious  burden  or  inconvenience,  than  that  the 
railroad  company  was  negligent  in  not  removing  the  entire  dry  grass  and  weeds 
upon  its  line,  which,  as  already  suggested,  could  only  be  done  at  so  great  an  ex- 
pense as  to  make  it  really  impracticable.  (Henry  v.  R.  R.  Co.  30  Vt.  038  ;  Norris 
V.  R.  R.  Co.  28  Vt.  99  ;  Horstman  v.  R.  R.  Co.  18  B.  Mon.  218.) 

The  propositions  are  not  Avholly  void  of  merit  that  farmers  along  the  line  of 
railways  cannot,  without  negligence,  make  precisely  the  same  uses  of  all  parts 
of  their  land,  which  might  be  made  without  negligence  in  lands  remote  from 
such  roads  ;  that  persons  who  enjoy  the  advantages  of  these  new  agents  of  civ- 
ilization must  bear  the  burden,  in  part,  of  the  increased  care  required  to  guard 
against  the  dangfers  which  they  necessarily  create  ;  and  that  the  compensation 
paid  by  the  railway  company  for  the  right  of  way  must  be  assumed  to  have  in- 
cluded payment  for  such  increased  care  on  the  land-owner's  part.  (i\jngell  on 
Carriers,  489  ;  Babcock  v.  R.  R.  Co.  9  Met.  553  ;  Xorris  v.  R.  R.  Co.  28  Vt.  99 ; 
Boothby  v.  R.  R.  Co.  51  Me.  318  ;  R.  R.  Co.  v.  Parramore,  31  Ind.  143.) 


J;    i  I  INJURY   BY   FIRE.  »S 

adjoining,  and  no  danger  reasonably  to  be  apprehended  from 
fire  from  locomotives,  does  not  appear  to  be  wholly  consistent 
with  the  rights  of  the  company  to  use  fii'e  upon  their  engines,  it 
being  conceded  that  if  the  company  use  all  the  best  appliances 
to  prevent  the  escape  of  fire,  and  are  careful  and  prudent  in 
the  management  of  their  engines,  they  are  not  resjx)nsible  for 
damages  which  occur,  notwithstanding  the  exercise^  on  the  part 
of  the  company,  of  all  due  precautions. 

§  77.  Fanners  not  compelled  to  guard  against  fire. — The 

general  tenor  of  ruling  by  the  Courts,  of  late  years,  has  been  to 
the  effect  that  farmers  whose  lands  lie  near  to  or  adjoining  rail- 
roads may  cultivate  and  use  them  in  the  manner  which  is  cus- 
tomary among  their  neighbor,  and  may  recover  for  damages 
caused  by  fire  from  sparks  or  coals  from  passing  locomotives^ 
although  they  have  not  plowed  up  the  stubble  of  their  grain- 
fields,  or  burned  over  the  lands,  or  })lowed  strips  of  land  adjoin- 
ing the  track,  or  taken  other  imusual  means  to  guard  against 
negligence  on  the  part  of  the  company.  It  is  not  negligence — 
such  as  would  bar  an  action  for  recovery  against  a  I'ailroad 
company — for  a  farmer  to  leave  the  grass  and  stubble  standing 
on  his  pastiu'c  or  grain-field,  along  the  side  of  which  is  a  rail- 
way track.  When  the  fire  is  lighted  on  his  land  by  sparks 
from  an  engine,  the  farmer  cannot  stand  by  and  let  it  burn 
without  doing  what  he  reasonably  may  to  protect  his  property  ; 
but  where  the  danger  is  not  seen,  but  is  only  anticipated  as  a 
possibility  merely,  or  is  dependent  on  the  continuance  of  an  ob- 
served negligence  on  the  part  of  the  railroad  employees,  the 
farmer  is  not  bound  to  protect  himself  by  unusual  precautions, 
such  as  plowing,  burning  over,  or  otherwise.  One  wlio  is  in 
the  exercise  of  his  lav\-ful  business  has  a  right  to  presume  that 
other  persons  Avill  so  conduct  their  business  as  not  to  interfere 
with  or  injure  him,  and  it  is  not  negligence  for  such  a  person 
to  assume  that  he  is  not  exposed  to  danger  which  can  only  af- 
fect him  through  a  disregard  of  law  on  the  part  of  some  other 
person  or  a  railroad  company.^ 

1  Flinn  v.  S.  F.  &  S.  J.  R.  R.  Co.  40  Cal.  14.  In  this  case,  tlio  plaintiff  "vvas  in 
possession  of  a  piece  of  land,  one  portion  of  which  was  cultivated  in  wheat,  and 
another  portion  was  used  for  pasturage.    At  the  time  of  the  injury  complained 


89  INJURY    BY    FIRE.  §  77 

of,  the  wheat  had  been  cut,  and  stood  in  stacks  on  the  land  where  it  had  hcon 
grown.  The  stubble  on  the  grain  land  and  tlie  grass  on  tlie  pasture  were  very- 
dry.  There  were  no  furrows  plowed,  or  land  in  any  way  cleared  from  inflam- 
mable material  in  the  field  along  the  line  of  the  lands  of  the  railway.  The 
grass  and  weeds  along  the  railroad  had  been  cut  and  left  upon  the  ground,  and 
had  become  very  combustible.  The  dt^fendant's  engines  were  provided  with  the 
best  and  most  approved  apparatus  for  preventing  the  escape  of  sparks  ;  but  as 
a  construction  train  passed  along  plaintiff's  lands,  the  engine  dropped  sparks, 
which  ignited  the  grass  and  weeds  along  the  trat-k,  and  a  lugh  wind  swept  the 
fire  through  the  fence,  over  the  jiasture  land  and  stubble-field,  to  the  grain- 
stacks,  and  the  stacks  were  entirely  consumed  by  the  fire.  In  the  action  against 
the  company  for  the  damage  done,  the  Court  below  held  that,  although  tlie  com- 
pany was  at  fault  in  the  condition  of  its  road,  the  plaintiff  himself  was  at  fault 
in  failing  to  take  ordinary  precautions  to  i^revent  fire,  which  might  unavoidably 
break  out  fi'om  spreading  to  his  wheat-stacks  ;  that  this  neglect  of  iilaintiff  con- 
tributed to  tlie  injury  complained  of,  as  mucli  as  the  negligence  of  the  defend- 
ant in  omitting  to  clear  its  road  of  the  weeds  and  grass  wliicli  had  been  cut  upon 
it,  and  that,  therefore,  no  recovery  should  be  had.  The  Supreme  Court,  how- 
ever, held  this  ruling  to  be  error,  and,  because  of  that  error,  reversed  the  judg- 
ment, saying  :  "No  one  is  required  to  take  any  precautions  against  unavoidable 
or  inevitable  accidents  ;  for  the  precautions  which  could  not  avert  the  injury 
would  be  futile.  Nor  is  the  ignition  of  combustible  material  lying  on  the  track 
of  a  railroad,  by  sparks  dropped  by  a  passing  engine,  unavoidable  accident. 
The  removal  of  the  combustible  matter  from  the  road  is  an  obvious  and  sure 
precaution.  The  rule  releasing  the  defendant  from  responsibility  for  damages, 
because  of  the  negligence  of  the  plaintiff,  is  limited  to  cases  where  the  act  or 
omission  of  the  plaintiff  was  the  proximate  cause  of  the  injury.  The  negligence 
in  this  case,  which  was  the  proximate  cause  of  the  destruction  of  the  plaintiff's 
grain,  was  the  leaving  of  the  dry  grass  and  weeds  upon  the  raih'oad,  where  they 
were  liable  to  be  set  on  fire  by  sparks  falling  from  passing  engines.  It  was  not 
negligence,  in  a  legal  sense,  for  the  plaintiff  to  leave  the  grass  and  stubble 
standing  on  his  pasture  and  grain-field.  He  was  not  required  to  destroy  or  re- 
move either,  in  order  to  obviate  the  consequences  of  the  possible  or  even  prob- 
able negligence  of  the  defendant." 

Richmond  r.  Sacramento  Etc.  R.  R.  Co.  18  Cal.  357. 

Tuff  V.  Warman,  5  C.  B.  N.  S.  573  ;  Fitch  v.  P.  R.  R.  Co.  45  Mo.  322.  "If  the 
conduct  of  a  railroad  company's  agents  was  the  inunediate  cause  of  fire  sjireading 
from  a  locomotive,  and  if,  with  the  exercise  of  prudence  and  the  use  of  proper 
appliances  on  their  part,  the  result  might  have  been  prevented,  the  company  is 
not  excused  from  liability  by  some  remote  negligence  in  the  plaintiff ;  such  as 
that  he  carelessly  left  grass  in  the  fence-corners  adjacent  to  the  road,  whereby 
the  fire  was  kindled.  Such  carelessness,  not  being,  the  i>roximate  cause  of  the 
loss,  is  not  contributory  negligence  which  will  excuse  the  com^iany." 

Robinson  v.  W.  P.  R.  R.  Co.  48  Cal.  409  ;  Cleveland  v.  R.  R.  Co.  8  O.  R.  570  ; 
Shearman  &  Eedfield  on  Negligence,  29. 


2  78  INJURY   TO   STOCK   BY   KAILROAD.  90 


CHAPTER  VI. 

DAJVIAGE  TO  LIVE-STOCK  BY  EAILKOiUJ  CARS   OR  ENGINES. 

§  78.  Liability  of  railway  for  injury  to  animals. 

§  79.  Contributory  negligence  by  owner  of  animals. 

§  80.  The  owner  of  animals  must  take  due  care  of  them. 

§  81.  Damage  by  locomotives  to  animals  running  at  large. 

§  82.  Collision  with  live-stock  where  the  railway  company  has  right  of  way. 

§  83.  Contract  to  fence  by  railroad  company  with  land-o^vne^. 

§  84.  Responsibility  of  railroad  comi^anies  to  the  public. 

§  85.  Burden  of  proof  of  negligence  when  animals  are  injured  by  locomotives. 

§  86.  First  duty  of  railway  companies  to  guard  their  trains. 

§  87.  Railway  companies  may  regulate  s^^eed  of  trains. 

§  88.  Laws  as  to  collision  A\'ith  animals  are  not  for  the  benefit  alone  of  tho 

o^vne^  of  Ua' e-stock. 

§  89.  The  duty  of  railway  companies  as  to  gates  and  other  openings  in  fences. 

§  90.  Reasonable  diligence  only  requii-ed  in  keeping  gates  closed. 

§  78.   Rail-way  companies  liable  for  injury  to  animals. — 

The  general  rules  as  to  the  liability  of  railroad  companies  for 
damage  by  their  trains  or  engines  running  into  live-stock,  to  be 
deduced  from  the  great  number  of  decisions,  may  be  stated,  in 
substance,  to  be  that,  when  the  owner  of  the  animals  can  shoAV 
that  they  were  properly  upon  the  track,  so  far  as  he  was  con- 
cerned ;  or,  differently  stated,  that  it  was  through  the  neglect 
of  the  company  ^  that  they  got  upon  the  roadway,  the  company 

1  4  Jones'  Law,  524 ;  Toaatis  v.  Cheshire  R.  R.  Co.  1  Foster,  3G3,  in  which  is  in- 
voked the  common-law  rule  that  the  owner  of  animals  is  bound  to  fence  them 
in,  and  the  rule  is  held  applicable  to  actions  against  railway  comi^anies,  citing 
the  leading  case  on  the  rule,  of  Rust  v.  ^M\y,  (>  Mass.  90.  It  is  to  be  observed, 
however,  that  in  many  of  the  States  the  common-law  rule  is  held  never  to  have 
been  adopted  as  part  of  the  law. 

1  Redlield  on  Railways,  4G4-5:  "For  instance,  if  an  animal  escape  into  the 
highway,  and  thus  get  upon  the  track  of  the  railway,  where  it  intersects  with  the 
highway,  and  is  killed,  the  company  is  not  liable.  And  if  the  animals  are  tres- 
passing upon  a  field,  and  stray  from  the  field  upon  the  track  of  the  railway, 
thnjugh  defect  of  fences,  which  the  company  are  bound  to  maintain,  as  against 
tlie  owner  of  the  field,  and  are  killed,  the  company  are  not  liable,  either  at 
coramon-law  or  the  English  statute,  or  upon  the  ground  that  the  defendant  ex- 
ercised a  dangerous  trade.    The  obligation  to  make  and  maintain  fences,  both 


91  INJURY    TO    STOCK    BY    RAILROAD.  §  78 

is  liable  ;  and  so,  if  being  upon  the  track  they  are  seen  by  the 
engine-driver,  and  he  wantonly  runs  into  them,  when,  with  reason- 
able care,  he  might  have  avoided  the  collision,  tiie  company  may 
be  held  responsible  for  tlie  damage  done.^ 

The  decisions  u[)on  these  propositions  are  not  quite  uniform 
in  their  tenor,  but  are  generally  to  the  effect,  substantially,  that 
the  company  is  exempt  from  liability  where  it  is  free  from  neg- 
lect of  duty  in  fencing,  or,  by  proper  cattle-guards,  preventing 
animals  from  getting  in  the  way  of  trains.^ 

But  if  the  company  is  bound  to  maintain  fences,  as  against  the 
owner  of  the  animals  injured,  and  fails  to  do  so,  and  through 
neglect  of  this  duty,  by  absence  of  or  defect  in  fences,  the  ani- 
mals get  upon  the  road,  the  company  must  make  good  the  loss 
wdiich  occurs  by  reason  of  this  neglect.^ 

at  common-law  and  under  the  statute,  applies  only  as  against  the  owners  or  oc- 
cupiers of  the  adjoining  close."  (Ilicketts  v.  E.  &  W.  D.  Co.  12  C.  B.  108;  Jack- 
sou  r.  R.  R.  25  Yt.  150.) 

1  A  railroad  company  is  liable,  on  ground  of  negligence,  for  injury  to  live 
stock,  througli  an  engineer's  want  of  ordinary  care  and  skill,  although  the  same 
were  wrongfully  upon  the  track.  (Toledo  R.  R.  Co.  v.  Brag,  57  111.  514;  Rock- 
ford  R.  R.  Co.  V.  Lewis,  58  111.  19;  T.  R.  R.  Co.  v.  Ingraham,  58111.  120;  C.  R.  R. 
Co.  V.  Smith,  22  Ohio  St.  227.) 

"  In  an  action  to  recover  the  value  of  cattle  alleged  to  have  been  killed  on  de- 
fendants' road  by  their  locomotive  and  train,  it  appeared  the  cattle  could  have 
been  seen  on  the  track  by  the  engineer,  if  he  had  been  on  the  look-out,  for  a 
distance  of  more  thau  half  a  mile;  yet  he  made  no  effort  to  slacken  the  sjieed  of 
the  train.  Held,  it  was  gross  negligence,  for  which  the  company  should  be  held 
responsible,  even  though  the  cattle  were  upon  the  track  without  the  fault  of  the 
company."  (C.  Etc.  R.  R.  Co.  v.  Baine,  55111.  220;  M.  Etc.  R.  R.  Co.  v.  Maloue, 
46  Ala.  3<il. ) 

2  1  Redtield  on  Railways,  4G4,  Sec.  12fl.  "The  decisions  upon  the  subject  of 
injuries  to  domestic  animals  by  railways  are  very  numerous,  but  may  be  re- 
duced to  a  comparatively  few  principles.  Where  the  owner  of  the  animals  is 
unable  to  show  that,  as  against  the  railway,  they  were  properly  upon  the  track, 
or,  in  other  words,  that  it  was  througli  the  fault  of  the  comj^any  that  they  were 
enabled  to  come  upon  the  road,  the  company  are  not,  in  general,  liable,  unless, 
after  they  discovered  the  animals,  they  might,  by  the  exercise  of  care  and  pru- 
dence, have  prevented  the  injury." 

8  Perkins  v.  Eastern  R.  R.  Co.  29,  307;  Knight  u.  Abert,  fj  Penn.  St.  472;  Pliila.  & 
G.  R.  R.  Co.  V.  Wilt,  4  Whart.  143;  1  Redfield  on  Railways,  4(50,  Sec.  5.  "  But  if 
the  railway  is  bound  to  maintain  fences,  as  against  the  ownier  of  the  cattle, 
and  they  come  uj)on  the  road  through  defect  of  such  fences,  and  are  injured, 
the  company  are,  in  general,  liable,  without  further  jiroof  of  negligence."  (Suy- 
dam  V.  Moore,  8  Barb.  358;  Waldrou  v.  Rensselaer  Etc.  R.  R.  Co.  8  Barb.  390; 
Horn  V.  A.  &  S.  L.  R.  R.  Co.  35  X.  H.  169;  Smith  r.  E.  R.  R.  Co.  35  N.  H.  ;«6.) 

But  in  an  action  against  a  railroad  company,  to  recover  for  stock  killed  1)y  a 
passing  train,  the  burden  is  upon  the  plaintiff,  to  show  either  that  the  killing  or 


§  79  INJURY    TO    STOCK    UY    RAILROAD.  92 

§  79.   Contributory  negligence  by  owner  of  animals. — 

A>  t«»  what  iR-j.^liL:ence  in  guarding  his  stock  will  vitiate  the 
owner's  claini  for  ihimages  for  injury  done  to  them  by  raih'oad 
trains  or  engines,  the  well  settled  principle  of  the  common 
law,  that  a  jiiaintiff  is  not  entitled  to  recover  for  injuries  to 
which  his  own  fault  or  negligence  has  directly  contributed,  ap- 
jK'ars  to  apply.'  It  is  true  that  local  statutes  seem  to  control, 
if  not  in  some  instances  to  abrogate,  the  application  of  it ;  but 
tlu'  general  tenor  of  decisions  construing  these  statutes  is  such 
li*  to  hold  tlie  (jwncr  of  the  stock  responsible  for  his  own  care- 
lessness except  where,  in  terms,  the  statute  jirovides  that  the 
company  shall  be  held  liable  at  all  events  and  without  reference 
to  any  fjucstion  of  negligence,  either  on  the  part  of  the  company 
or  that  of  the  owner  of  the  animals.^ 

The  general  result  of  these  laws  has  been  held  to  be  to  leave 
the  (ptcstion  of  the  effect  of  the  conduct  of  the  owner  of  the 
animals  up(»n  his  right  to  recover  for  the  acts  of  others  where 
it  Willi  at  the  common  law.  But  the  onus  of  proof  is  changed 
by  the  statutes,  so  that  where  stock  is  killed  the  laws  impute 
negligence  to  the  company,  unless  it  can  show  that  the  damage 
wa>  tlie  result  of  unavoidable  accident.^ 

lnjur>-  wiis  donf  at  a  iMiint  wliore  the  company  luirt  the  riglit  to  fence  and  had 
t»ol  fi-m«><!.  or  that  tin-  company  wore  guilty  of  negligence  in  causing  the  injury. 
(ComMoatl  r-.  I).  M.  j;tc.  R.  K.  Co.  ;y  Iowa,  .'{Tfj.) 

•  ^\■ll«•n!  iiniiiuilK  fKtai)c  from  tlieir  indcsures,  even  where  by  the  law  ]irohib- 
itMl  In.in  niuuing  at  large,  if  Kuch  oscajw  is  witliout  the  fault  or  knowledge  of 
tlip  uwttcr.  Hiid  tlK-  animals  stray  upon  the  railroad  track  at  a  point  where  the 
oumpMiiy  had  failed  t<»  comitly  witli  the  law  requiring  it  to  fence,  the  ovraev  may 
pe«c«.v«-r  for  daiiwgcK  for  tjieir  injury  l)y  being  run  into  by  engines  or  cars.  (Ohio 
&  M.  IC.  IC.  Co.  r.  .Jon.-K,  (kJ  111.  47'_';  Sawyer  r.  11.  R.  Co.  105  ]SIass.  liK);  Chicago 
A  N.  W.  It,  lU  Cm.  r.  Harris,  .M  111.  r,'2K.) 

«  '  111  all  ...  linn  iindt-r  the  statute  of  Indiana,  against  a  railroad  company,  for 

**"  •*'•"■"  "'"  liability  of  the  cumi)any  is  based  .solely  on  a  failure  to 

•••<?  question  of  conlriliutory  negligence  does  not  arise;  and  if 

[*"  kilb-*!  or  injured  at  a  point  wliere  the  company  could  lawfully 

■  •  tr.iik.  but  negliTted  to  do  so,  the  company  is  liable."    (Toledo 

■     ry,  :ki  Ind.  21K;  Ind.  Etc.  R.  R.  Co.  v.  McBrown,  40  Ind.  229; 

'       .•.  .Miller.  Id.  21.'-,.) 

•  .into  of  Indiana,  it  is  not  necessary  to  aver  that  the  animal  went 
"'"  •■'  ■'  I''"'"'-  wli'Te  the  road  was  not  fenced;  the  reasonable  infer- 
r"'  "  "'•*  ^^  '•'"  complaint  being,  that  the  road  was  not  securely 
!''■                              where  It  went  upon  the  track.    (R.  R.  Co.  v.  Miller,  4fi  Ind. 

•  Tfaffsututc*  roncernliiK  fences  In  the  United  States  generally  are  such  that 
Uw  ciutapMiy.  by  fence*  and  cattle-guards,  must  prevent  cattle  from  coming  up- 


93  INJURY    TO    STOCK   BY    RAILROAD.  §  80 

§  80.  The  owner  of  animals  must  take  due  care  of 
them. — But  even  the  existence  of  these  laws  maklnoi;  the  com- 
pany  responsible  for  damages  done  to  live  stock,  where  the  road 
remains  unfenced,  does  not  relieve  the  owner  of  tlie  animals  from 
due  care  of  them — the  general  principle  remains  applicable  to 
him.  Every  man  is  bound,  at  his  peril,  to  keep  his  cattle  off 
the  track,  and  if  he  do  not,  and  they  suffer  damage  by  his  own 
willful  conduct  or  neglect,  he  has  no  claim  upon  the  company  or 
its  servants,  but  he  may  be  liable  for  damages  resulting  to  the 
company  or  to  passengers  over  the  road.^  Although  it  has  been 
held,  in  some  of  the  States,  that  under  the  statutes  there  pre- 
vailing the  railroad  companies  are  liable  for  all  damages  to 
stock  killed  or  injured  at  points  where  the  corporation  should 
have  fenced  but  did  not,  without  reference  to  the  question  of 
fault  on  the  part  of  the  plaintiff,  or  even  of  negligence  on  the 
part  of  defendant,  on  the  ground  that  the  law  is  peremptory,  and 

on  their  roadway,  and  from  the  fact  that  they  are  on  the  track  it  is  manifest  that 
the  company  has  not  accomplislied,  in  that  instance,  the  end  for  which  the  law 
was  made;  and  where  a  railroad  company  seeks  to  shield  itself  from  liability 
for  stock  killed  where  the  road  is  not  fenced,  on  the  ground  that  it  should  not  be 
fenced  at  that  point,  the  onus  is  on  the  company  to  establish  that  fact.  (R.  R. 
Co.  V.  O'Conner,  37  Ind.  95;  R.  R.  Co.  v.  Sullivan,  38  Ind.  202.) 

1  Shearman  &  Redfield  on  Negligence,  471:  "These  statutes  are  not  to  be  so 
literally  construed  as  to  enable  one  who  willfully  turns  his  cattle  upon  a  railroad 
to  recover  for  injuries  suffered  by  them."  (n>id,  402.)  "  So  the  neglect  of  a  rail- 
road company  to  build  a  fence,  does  not  exonerate  the  plaintiff  from  the  obliga- 
tion to  take  ordinary  care  for  the  i^rotection  of  his  animals,  where  the  fence,  if 
built,  would  not  have  been  svifficient  to  close  access  to  the  track.  If  the  i^laint- 
iff 's  negligence  was  the  direct  and  proximate  cause  of  the  injury,  the  defendant 
shovild  have  the  benefit  of  that  fact,  notwithstanding  its  neglect,  since  its  care 
would  not  have  sufficed  to  prevent  the  injury  from  occurring." 

In  New  York,  it  has  been  held  that  the  statiites  compelling  railroad  com- 
panies to  fence  do  not  make  them  insurers  against  accident  by  running  into  cat- 
tle and  causing  injury  to  them  thereby ;  but  their  liability  in  such  cases  is  a  ques- 
tion of  neglect  of  duty.  (Murray  v.  R.  R.  Co.  3  Abb.  (N.  Y.)  App.  Dec.  339.) 
"The  general  rule,  that  when  cattle  or  other  stock  are  permitted  to  go  at 
large,  in  i;ninclosed  woods  and  fields,  the  o^vner  of  siich  stock  takes  the  risk  of 
their  loss  or  injury  by  imavoidable  injury,  applies  when  stock  is  permitted  to 
range  in  proximity  to  passing  railway  trains,  and  to  wander  on  the  uninclosed 
track  of  a  railway."  (Memphis  R.  R.  Co.  v.  Blakeny,  43  Mis.  218;  Ruiford  v.  M.  R. 
R.  Co.  Id.  238;  U.  P.  R.  R.  Co.  v.  Rollins,  5  Kans.  107;  Lock  v.  St.  P.  R.  R.  Co.  15 
Minn.  350. )  But  the  mere  fact  that  an  animal  is  at  large  by  the  "permission  of 
the  owner,  and  is  run  over  and  killed  by  a  locomotive,  does  not  justify  the  con- 
clusion that  the  injury  was  occasioned  by  the  willful  act  of  the  owner;  and  in  an 
action  against  the  railroad  company  to  recover  for  the  loss  of  the  animal,  the 
burden  of  proof  to  show  a  willful  act  on  the  part  of  plaintiff  rests  on  the  rail- 
road company."     (Stewart  v.  R.  R.  Co.  32  Iowa.  .501. ) 


§  81  IXJURY   TO    STOCK    BY   RAILROAD.  94 

to  the  effect  that  railroad  companies  sluill  be  held  responsible 
for  all  such  losses,  and  the  Coui'ts  have  no  power  by  inquiry  into 
collateral  issues  to  vary  the  terms  of  the  hiw.^ 

§  81.   Damage  by  locomotives  to  animals  running  at 

large. — The  right  to  pasture  common  or  unincloscd  lands  ap- 
pears to  be  subject  to  the  right  of  railroad  companies  to  run 
their  trains  through  such  lands  over  a  roadway  not  fenced, 
where  there  is  no  absolute  statutory  provision  requiring  that 
railroads  should  be  fenced  when  passing  through  uninclosed 
lands  ;  and  so  where  parties  themselves  may,  but  fail  to  do  so, 
bind  the  company  to  fence  in  the  absence  of  statutory  provision 
compelling  such  action,  it  is  negligence  on  the  part  of  the  owner 
of  animals  to  allow  them  to  run  at  large  in  the  vicinity  of  the 
railway  ;  and  for  damages  Ijy  trains  running  into  his  stock  the 
owner  cannot  recover,  where  the  common-law  rule  as  to  fencing 
in  cattle  is  in  force  ;^  and  even  where  the  statute  imposes  upon 

1  Under  the  Indiana  statutes,  a  railroad  company  is  liable  for  stock  killed 
or  injured  at  a  point  where  it  is  required  to  fence  its  track  and  has  not  done 
so,  without  reference  to  the  question  of  fault  on  the  part  of  tlie  plaintiff,  or 
negligence  on  the  part  of  defendant.  (Jeffersonville  E.  R.  Co.  v.  Ross,  37  Ind. 
545;  Ohio  &  :M.  R.  R.  Co.  r.  Miller,  46  Ind.  215.)  But  it  is  essential  to  the  lia- 
bility of  the  railroad  company,  for  the  death  or  injury  of  an  animal,  that  it 
should  1)0  actually  touched  by  the  engine,  cars,  or  other  carriage.  (Ind.  Etc. 
R.  R.  Co.  V.  McBrown,  4(j  Ind.  229.) 

So,  in  California,  the  road  being  unf enced,  the  company  miist  bear  the  loss  by 
damage  to  cattle.  (McCoy  r.  C.  Etc.  R.  R.  Co.  40  Cal.  532;  Brooks  v.  N.  Y.  &  E. 
R.  R.  Co.  13  Barb.  594;  Lafferty  v.  R.  R.  Co.  44  Mo.  291;  JeffersonAille  R.  R. 
Co.  V.  Avery,  31  Ind.  277. ) 

2  Tlie  general  rule,  under  the  common  law  of  England,  is  that  a  railroad' com- 
pany, like  any  otlier  proprietor  of  land,  is  under  no  obligation  to  fence  its  road, 
and  trespassers  come  there  at  their  peril.  (Shearman  &  Redfield  on  Negligence, 
531  ;  N.  Y.  &E.  R.  R.  r.  Skinner,  19  Penn.  St.  298;  North  P.  R.  Co.  r.  Reliman,  49 
Penn.  St.  109  ;  Coy  v.  Utica  R.  R.  Co.  23  Barb.  G43  ;  Williams  v.  U.  R.  R.  Co.  2 
Mich.  259,  where  a  railroad  company,  which  was  not  obliged  to  fence  unless  re- 
quested to  do  so  by  the  land-o^\nier,  agreed  with  an  adjoining  owner  not  to  fence 
at^ainst  his  land,  and  a  cow  strayed  from  such  lands  upon  the  track  of  the  road, 
and  was  killed  by  one  of  their  trains.  Held,  that  the  owner  of  the  cow,  having 
by  his  own  fault  contributed  to  tlie  loss,  could  not  recover  of  the  company. 
(Towni  V.  P.  Etc.  R.  R.  Co.  2  R.  I.  404.)  And  such  would  appear  to  be  the  rule 
even  where  by  the  common  law  cattle  are  iiermitted  to  run  at  large.  Railroad 
companies  are  not  bound  by  common  law  to  erect  fences  to  keep  out  cattle. 
(Shearman  <fc  Redfield  on  Negligence,  452  ;  Memphis  &  C.  R.  R.  r.  Orr,  43  ]SIiss. 
288. )  "So  long  as  railroad  comjianies,  on  the  one  hand,  and  owners  of  live  stock, 
on  the  other,  are  not  required  to  fence  tlieir  roads  to  prevent  intrusions,  on  the 
other  to  restrain  their  stock,  the  respective  rights  of  tliose  parties  appear  to  be  de- 
lined  upon  principles  alike  just  to  both."  (New  O.  Etc.  R.  R.  Co.  v.  Field,  4G  Miss. 


96  INJURY   TO    STOCK    BY    RAILROAD.  §  81 

the  company  the  duty  of  fencing,  this  duty  may,  by  contract, 
be  assumed  by  the  adjoining-  hmd-owncr,  and  where  by  agree- 
ment the  owner  of  the  jjremises  through  which  a  railroad  runs 
takes  upon  himself  the  duty  of  building  or  maintaining  fences, 
he  must  do  so  or  neglect  it  at  his  peril,  so  far  as  any  loss  of  or 
injury  to  his  live  stock  is  concerned.^ 

573;  Id.  578. )  "It  is  uow  woll  settled  by  authority  and  reason,  in  tliis  State,  that 
uninolosed  lands,  although  private  property,  are  a  (7!<asJ-common,  or,  as  expressed 
in  loeal  parlance,  a  'range,'  in  which  the  owners  of  cattle,  and  domestic  ani- 
mals generally,  may  permit  them  to  go  out  at  largo  and  depasture  without 
thereby  incurring  any  resijonsibility  as  trespassers.  The  common-law  i)rinciple, 
which  required  the  owTier  to  conline  his  stock  on  his  own  premises,  and  made 
him  a  wrongdoer  if  they  escaped  into  the  lands  of  his  neighbor,  never  obtained 
in  this  State.  But  the  converse  is  the  rule  :  that  each  occupant  of  lands  must 
secure  his  fields  by  strong  and  sufticient  inclosures  against  the  intrusion  of  ani- 
mals ;  and  that  the  owner  cannot  lie  held  as  a  tresjiasser  for  their  entering  the 
close  unless  they  have  broken  a  fence  deemed  in  law  sufficient  to  exclude  them. 
Uninclosed  lands,  in  this  State,  are  held  subject  to  this  right  or  easement.  Rail- 
road companies,  like  other  proprietors,  are  not  bound  to  inclose  their  roads  to 
keep  off  cattle."  "Persons  living  contiguous  to  railroads  have  the  same  right 
as  others ;  but  they  assume  the  risk  of  their  greater  exposure  to  danger.  The  cat- 
tle are  liable  to  go  iipon  the  road;  the  company  cannot  detain  them,  damage  feas- 
ant, any  more  than  any  other  land-owner  ;  nor  can  they  treat  them  as  unlawfully 
there,  and  therefore  relax  their  care  and  efforts  to  avoid  their  destruction.  The 
only  justification  of  the  company  for  the  injury  to  them  is  that,  in  the  prosecu- 
tion of  their  ordinary  and  lawful  business,  the  act  could  not  be  avoided  by  the 
use  of  such  care,  prudence,  and  skill  as  a  discreet  man  would  put  forth  to  pre- 
vent or  avoid  it.  The  owner  of  cattle  at  large  on  the  range  takes  the  risk  of  in- 
jury or  total  loss  by  the  locomotive  and  train,  if  the  cattle  exposed  upon  the 
track  could  not  be  saved  by  iirudence,  skill,  or  caution.  The  company  is  ex- 
cused and  justified  where,  after  using  the  means  suggested  by  skill,  prudence, 
and  caution,  the  injury  or  destruction  could  not  be  avoided."  (Vicksburg  &  J. 
E.  R.  Co.  V.  Patton,  31  Miss.  17G  ;  Eaiford  v.  M.  C.  R.  E.  Co.,  43  Id.  2.38.) 

1  ""Where  a  railroad  company  has  a  I'alid  contract  with  the  owner  of  the  ad- 
joining land,  by  which  the  latter  agrees  to  erect  and  maintain  the  fence  required 
by  law,  this  agreement  has  generally  been  held  a  good  defense  for  that  company 
against  any  claim  of  svicli  land-o^vTler,  or  of  a  grantee  or  tenant  of  such  land 
under  him,  founded  upon  the  statute  ;  and,  even  if  the  fence  is  destroyed  by 
the  culpable  negligence  of  the  railroad  company,  this  does  not  revive  its  statu- 
tory liability  to  the  adjoining  occupant.  His  remedy  is  by  an  action  for  the 
value  of  the  fence  thus  destroyed,  which  it  is  his  duty  to  replace.  He  is  not  at 
liberty  to  leave  the  fence  out  of  repair,  and  then  to  hold  the  company  respon- 
sible for  all  damage  that  may  ensue."  (Shearman  &  Rediield  on  Xegligence,  4G3; 
Toledo  R.  R.  Co.  v.  Howell,  38  Ind.  447;  Talm.adgc  r.  Rensselaer  Etc.  P.  R.  Co.  13 
Barb.  493;  T.  H.  R.  R.  Co.  r.  Smith,  K!  Ind.  102;  Terry  v.  K  Y.  Central  11.  Co.  22 
Barb.  574  ;  Eastern  v.  L.  M.  R.  R.  Co.  14  Ohio  St.  48  ;  Indianapolis  R.  R.  Co.  v. 
Petty,  25  Ind.  41.3.)  A  railroad  company  maintaining  and  operating  a  railway 
upon  a  person's  land,  by  his  consent,  is  nevertheless  bound  to  so  avail  himself 
of  such  consent  as  to  work  no  injury  to  the  live  stock  of  the  person  who  has 
permitted  him  to  pass  through  his  land  ;  and  it  is  immaterial  that  the  company 


§  82  INJURY    TO    STOCK    BY    IJAILllOAD.  96 

§  82.  Collision  -with  live  stock  ^vhere  right  of  way  has 
been  granted. — It  will  not,  from  the  preinises  above  given, 
result  that  a  mere  license  to  occupy  lands  sufficiently  to  con- 
struct through  them  a  railway,  places  the  railroad  company  in 
such  position  as  to  free  it  from  responsibility  for  damages  by 
injury  to  stock.  It  may  occur  that  the  land-owner  does  not  de- 
sire to  impede  the  construction  of  a  railroad,  and  may  alloAV  the 
company  to  build  its  road  and  run  its  trains  without  pressing 
his  claim  for  damages  for  taking  his  land.^ 

In  such  cases  it  could  not  well  be  claimed  that,  because  he 
favored  the  company,  the  land-owner  should  lose  the  use  of  his 
land  for  pasture.  His  animals  would  rightfully  be  on  liis  prem- 
ises, his  domestic  animals  are  rightfully  on  the  land  adjoining  the 
roadway,  and  nothing  prevents  their  obeying  natural  instincts  to 
wander  from  place  to  place ;  the  railroad  companies  may,  also, 
with  their  train,  be  rightfully  there,  and  the  general  rule  applies 
that  a  man  is  bound  to  so  use  his  property  as  not  to  injure  his 
neighbor,  and  thence  would,  by  a  natural  law,  result  a  duty  on 

■was  not  bound  to  fence  its  track,  or  that  it  could  not  have  avoided  striking  tlio 
animal  after  it  was  seen.     (Mathews  v.  R.  E.  Co.  18  Minn.  4Si.) 

Some  doubt  is  in  one  case  expressed  whether,  by  agreement,  the  company  can 
evade  the  statutory  liability  for  stock  injured  or  killed.  (Shephard  v.  R.  R.  Co. 
.35  N.  Y.  G41.)  But  there  appears  to  be  no  good  reason  between  the  parties — the 
railroad  company  on  one  hand,  and  he  through  whose  lands  the  road  runs  on 
the  other — why  they  should  not,  by  agreement,  regulate  their  liabilities,  one  to 
another,  in  the  premises,  by  a  waiver,  on  the  part  of  the  land-owner,  of  a  statu- 
tory advantage. 

As  a  matter  of  public  policy,  it  may  be  that  this  right  to  waive  the  advantage, 
given  ])y  statute  against  the  company,  should  not  be  conceded.  The  interests 
of  the  traveling  public  are  involved,  and  the  same  reasoning  under  which  the 
constitutionality  of  statutes  requiring  railroad  companies  to  erect  and  maintain 
fences  along  the  line  of  their  roads  has  been  upheld,  viz.,  as  a  police  regulation 
for  the  protection  of  the  traveling  jiublic,  (Penn.  R.  R.  Co.  i\  Eiblet,  GG  I'enn.  St. 
1G4)  may  deprive  the  persons  whose  land  lies  contiguous  to  a  railway  from  re- 
leasing the  company  from  its  statutory  liability.  At  all  events,  it  must  be  con- 
ceded that  no  agreement  or  act  of  a  land-owner  in  relation  to  fences  is  a  defense 
to  an  action  brought  by  a  third  person  not  claiming  under  such  land-owner. 
(Corwin  r.  R.  R.  Co.  1.3  N.  Y.  42  ;  Jeffer.sonville  R.  R.  Co.  v.  Nichols,  .30  Tnd.  321.) 

1  A  land-owner  released  to  a  railroad  company  the  right  of  way  through  his 
land,  and  further  released  and  relinquished  to  the  company  all  damages  and 
rights  of  damages,  actions  and  causes  of  action,  which  he  might  sustain  or  be 
entitled  to  by  reason  of  anj'thing  connected  witli  or  consequent  uiion  the  loca- 
tion or  construction  of  said  work,  or  the  repairing  thereof,  when  fmally  estab- 
lished or  comiileted.    (Cleveland  R.  R.  v.  Crossley,  3G  Ind.  370.) 


97  INJURY    TO    STOCK    BY    RAILROAr.  §  83 

tlic  part  of  the  company  to  fence,  or  failing  to  do  so,  answer  for 
the  default.^ 

§  83.  Contract  to  fence  by  railway  company  with  land- 
owner.— A  raih-oad  company  may  liave  a  valid  contract  -with 
the  person  who  owns  or  is  in  the  occupancy  of  land  adjoining 
the  roadway,  l)y  which  such  land-owner  or  occupant  may  be 
bound,  as  between  himself  and  the  corporation,  to  build  and 
keep  in  repair  the  fences  along  the  sides  of  the  road,  which  the 
law  prescribes.  Where  such  an  agreement  exists  it  would  ap- 
pear to  be  a  bar  to   any  action   against  the   company  founded 

1  Williams  v.  Groncott,  4  B:  &  S.  149  ;  Rogers  ti.  N.  R.  R.  Co.  1  Allen,  IG  ;  Mat- 
thews V.  St.  P.  &  C.  R.  R.  Co.  18  Minn.  434.  "The  defendant,  without  paying 
for  or  securing  any  compensation  to  the  plaintiff,  and  Avitliout  acquiring  any 
right  to  make  and  maintain  its  railroad  through  his  land  by  proceeding  there- 
for as  prescribed  in  its  cliarter,  constructed  and  operated  the  same  tln-ough 
plaintiff's  pasture,  and,  while  so  operating  the  same  with  its  engines  and  cars, 
ran  against  and  injured  a  cow  belonging  to  plaintiff,  and  by  him  kept  in  said  pas- 
ture. Held,  that  defendant  was  prima  facie  a  trespasser,  and  liable  for  said  in- 
jury. 'Defendant  alleged,  in  its  defense,  that  it  went  upon  the  land  and  con- 
structed its  road  thereon,  and  at  the  time  of  said  occurrence  was  operating  tlu; 
same  with  its  engines  and  cars,  by  and  with  the  license  and  permission  of  plaint- 
iff. Held,  that  if  this  were  so,  the  law,  nevertheless,  in  such  case,  cast  upon  the 
defendant  the  duty  to  prevent  such  jiermissive  use  of  plaintiff's  land  from 
injuring  plaintiff's  cattle  kept  by  him  in  said  pasture,  and  that  it  was,  there- 
fore, liable  for  any  injury  occurring  to  them  through  such  use,  and  that  it  was 
immaterial  either  that  defendant  could  not  have  avoided  striking  the  cow  after 
she  was  seen,  or  that  by  defendant's  charter  it  was  not  obliged  to  fence  its 
road." 

The  legislature  having  the  right  to  grant  a  franchise,  and  permit  the  railroad 
company  to  take  private  property  for  a  qiiasi-])u\Aic  use,  limits  properly  the  ex- 
ercise of  the  right  so  to  do  by  prescribing  the  manner  of  condemning  the  land ; 
and  if  the  railroad  company  does  not  avail  itself  of  the  privilege  by  submitting 
to  the  rule  im^iosed,  it  is  a  trespasser  in  taking  the  land,  and  cannot  shelter 
itself  under  its  charter  and  the  State  laws.  (Blake  et  al.  v.  W.  &  S.  P.  R.  R. 
Co.  19  Minn.  376;  State  v.  R.  R.  Co.  Id.  4:34.) 

Cook  r.  M.  &  St.  P.  R.  R.  Co.  Sup.  Court  of  ^Yis.  April,  1875.  "The  complaint 
avers  that,  at  the  time  of  the  plaintiff's  making  a  conveyance  of  a  right  of  way 
over  his  land  to  the  O.  &  M.  R.  R.  Co.,  and  as  a  part  of  the  consideration  for 
such  conveyance,  it  was  agreed,  between  plaintiff  and  said  company,  that  the 
latter  should  construct  two  farm-crossings  and  two  cattle-guards  on  said  prem- 
ises. Held,  that  this  does  not  show  any  covenant  running  with  the  laud,  and 
therefore  does  not  show  that  defendant,  as  lessee  of  the  railroad  of  said  com- 
pany, is  under  any  obligation  to  build  such  cattle-guards,  although  he  took  the 
lease  with  notice  of  such  agreement  of  his  lessor. 

"The  action  being  for  the  killing  of  plaintiff's  horse  by  a  train  on  the  road  of 
the  O.  &  M.  Company,  held  and  operated  by  the  defendant  as  lessee,  and  the 
only  negligence  alleged  being  defendant's  failure  to  construct  one  of  said  cattle- 
guards  on  jilaintiff's  land,  the  complaint  is  held  bad  on  demurrer." 

Farm— 7. 


§  83  IXJUEY    TO    STOCK    BY    ItAILROAD.  98 

upon  failure  to  fence,  so  long  as  the  only  person  injured  is  the 
party  so  contracting  with  the  company.^  Such  agreements  have 
been  generally  sustained  by  the  Courts,  and  also  have  been  held 
to  be  such  as  are  not  void  within  the  Statute  of  Frauds,  which 
venders  void  an  agreement  not  to  be  performed  Avithin  a  year, 
when  the  contract  is  not  in  writing.^  Such  contracts  are  bind- 
ing, not  only  upon  the  owners  of  the  land,  so  far  as  to  deprive 
them  of  an  action  against  the  company  for  injuries  to  animals, 
when  such  injuries  result  from  breach  of  the  contract  to  fence, 
but  also  hold  the  tenant'^  or  grantee*  of  the  original  owner  who 
made  the  contract. 

This  proposition  is  not  conceded  l)y  all  the  Courts,  and  in  one, 
at  least,  it  has  been  held  that  it  is  no  defense  that  the  party 
whose  cattle  Avere  killed  Avas  legally  bound  to  build  such  fences 
as  Avould  prevent  his  cattle  from  straying  upon  the  railroad, 
under  a  coAcnant  between  his  assignor  and  the  company  ;  that, 

1  "  Where,  l)y  contract  with  a  railroad  company,  the  owner  of  the  hind  through 
which  the  road  runs  has  undertaken  to  maintain  tlie  fence,  no  recovery  can  be  by 
him  had  against  the  company  for  an  injury  to  his  animals  which  resulted  from  his 
failure  to  jierform  his  part  of  the  contract."  (Ind.  R.  R.  Co.  v.  Petty,  25  Ind.  413; 
Talmadge  v.  R.  R.  Co.  13  Barb.  493;  Pluckwell  v.  AVilson,  5  Car.  &  P.  075; 
Williams  v.  Holland,  G  Id.  53;  Lack  v.  Seward,  4  Id.  lOG;  Waldron  v.  R.  R.  Co.  8 
Barb.  S'.lO;  Luydan  v.  Moore,  8  Id.  358;  Tonowanda  R.  R.  Co.  v.  Hunger,  5  Denio, 
'J55;  Shepherd  v.  Hess,  12  Johns.  443;  Deyo  v.  Stewart,  4  Denio,  101.) 

-  Talmadge  v.  R.  &  S.  R.  R.  Co.  13  Barb.  4!)8.  The  contract  might  have  been 
carried  into  effect  within  a  year,  and  Avas  therefore  valid,  though  made  in 
parol.    (2  I.«igh's  Nisi  Prius,  1(M5;  Donellan  v.  Reed,  3  Barn.  &  Adol.  8:)!).) 

3  "Where,  by  contract  with  a  railroad  company,  the  owner  of  the  land  through 
which  the  road  runs  has  undertaken  to  maintain  the  fence,  no  recoA^-ry  can  be 
had  by  him  against  the  company  for  an  injury  which  resulted  from  his  failure 
to  perform  the  contract,  and  the  tenant  of  the  land-0A>Tier,  thus  bound  to  main- 
tain the  fence,  is  in  no  better  position  to  maintain  the  action  than  the  proprie- 
tor." (Toombs  V.  R.  R.  Co.  18 Barb.  583;  Duffy  t>.  R.  R.  Co.  2  Hilt.  496;  Cine.  R. 
R.  Co.  V.  Waterson,  4  Ohio  St.  424.) 

4  Shearman  &  Redtield  on  Negligence,  4(53;  Terry  v.  R.  R.  Co.  22  Barb.  574; 
Eastern.  R.  R.  Co.  14  Ohio  St.  48.  "T,  T)y  deed,  duly  recorded,  conA'eyed  to  a 
railroad  company  the  right  of  way,  as  the  road  was  locatcnl;  and  coA-enanted  for 
himself,  his  heirs  and  assigns,  to  ereot  and  maintain  a  fence  on  each  side  of  the 
right  of  way.  T  subsequently  conA^eyed  the  land,  tlirougli  which  was  the  right 
of  way,  to  H,  by  deed  in  fee,  and  1%  a  timant  holding  under  H,  brought  an  ac- 
tion against  the  company  for  killing  his  horse,  it  being  on  the  track  where  it 
passed  through  the  land,  and  no  fence  having  been  erected,  by  the  negligent 
running  of  the  engine.  Held,  that  the  assignee  of  T  Avas  so  far  affected  by  the 
oov(!nant  in  the  grant  that  he  could  derive  no  advantage  by  its  breach,  and  that 
he  could  not  claim  from  the  railroad  company  a  higher  degree  of  care  to  aA'oid 
injury  to  a  horse  being  on  the  track  through  the  land,  than  if  the  coA'enant  had 
been  kept." 


99  INJURY    TO    STOCK    BY    IlAILKOAD.  §  84 

notwitlistandlno;  pucli  covenant,  it  was  the  duty  of  the  company 
to  sec  tlie  fence  built,  and,  failino^  in  that,  they  are  liable. ^ 

But  the  j^eneral  tenor  of  the  authorities  is  to  the  effect  that 
the  pr()])rietor  of  the  land  may  legally  bind  himself  to  build 
and  maintain  the  fences;  that  such  a  contract  may  be  made  a 
covenant,  ninning  Avith  the  land,  and  bind  his  successors  in  in- 
terest and  their  tenants,  and  tliat  such  is  the  law  is  claimed  by 
the  best  of  the  modern  text-writers.^ 

§  84.   Railway  companies   responsible   to   tlie   public. 

—  Railroad  companies  cannot  so  change  their  liability  by  con- 
tract Avith  the  owner  of  land  adjoining  the  roadway  as  to  avoid 
the  responsibility  for  damages  by  injury  to  domestic  animals 
which  belong  to  strangers  to  the  contract;  and  no  agreement  or 
act  of  a  land-owner  in  relation  to  fences  is  a  defense  to  an 
action  brought  by  a  third  party,  who  is  not  in  priority  with  such 
land-OAvncr.^ 

The  statutes  by  which  is  imposed  upon  railroad  companies 
the  duty  of  maintaining  fences  and  cattle-guards  are  enacted  for 
the  benefit  of  the  owTiers  of  domestic  animals,  which  are  liable 
to  stray  upon  the  road-bed,  and  this  responsijjility  cannot  be 
shifted  by  the  company  in  such  manner  as  to  deprive  the  por- 
tion of  the  community  who  have  live-stock,  of  the  protection  to 
their  property  by  such  statutes  as  will  tend  to  render  the  own- 
ers of  such  other  property  as  railroads,  and  the  trains  running 
on  them,  especially  careful  to  guard  against  doing  damage. 

The  benefit  of  the  American  statutes  is  generally  not  confined 
to  owners  or  occupants  of  land  immediately  adjoining  a  rail- 
road, but  extends  to  all  owners  of  domestic  animals."*  And  the 
company  can  no  more  avoid  its  responsibility  ]>j  contract  with 
the  adjoining  land-owner  than  it  could  by  employing  a  party  to 
do  the  work  of  fencing,  and,  on  his  failure  to  do  his  work, 
throw  on  him  the  direct  responsibility  to  the  person  who  has 
suffered  by  his  neglect. 

1  Shepherd  v.  R.  U.  Co.  Z5  N.  Y.  CAl. 

2  Shearman  &  Kedfield  on  Negligence,  403. 

3  Corwin  v.  R.  R.  Co.  13  N.  Y.  42;  Jeirersonville  R.  R.  Co.  r.  Nichols,  ".0  Ind.  321. 

4  Ind.  R.  R.  Co.  V.  Meek,  10  Ind.  502  ;  Brown  ?>.  R.  R.  C:o.  12  Gray,  55  ;  Ind.  R. 
K.  Co.  V.  Townsend,  10  Ind.  38  ;  Fawcett  v.  R.  R.  Co.  16  Q.  B.  GIO. 


§  85  INJURY  TO  STOCK  BY  RAILROAD.  100 

The  8tatiitory  rc(|iiircmciits  under  which  raih-oad  companies 
aiv  iiorniitti'il  to  exi.<t  and  do  business  arc  of  a  quasi-iioYice: 
character,  in  so  far  as  tliey  tend  to  protect  property  of  per- 
hons  whose  contijiuity  to  the  roadway  render  them  especially 
lial>lc  to  injury,  and  not  only  the  owner  of  live-stock,  but  the 
traveling  public  is  interested  in  the  strict  enforcement  of  the 
laws  rc(|uirini;  railroad  companies  to  fence.-' 

§  85.  Bmden  of  proof  as  to  negligence. — As  to  what  is 
iK'<;lit;fncc  on  ihc  pari  uf  tlie  owner  of  live  stock  sufficient  to  pre- 
vent his  recover}'  from  the  railroad  company  of  damages  for 
their  injury  by  passing  trains,  and  Avhat  may  be  deemed 
negligence  on  the  part  uf  the  railroad  coujpany  or  its  employees 
of  such  a  character  as  to  make  the  corporation  legally  respons- 
ible for  damage  by  collision  with  domestic  animals,  have  been 
subjects  of  considerable  discussion  in  the  Courts. 

Apart  from  legislation  1)y  wliich  statutory  provision  has  been 
made,  the  fact  of  domestic  animals  being  killed  or  injured  by 
the  companies'  engines  or  trains  is  not  prima  facie  evidence  of 
negligence  such  as  will  charge  the  railroad  company.  ^     A  dis- 

>  Shearman  &  Redfield  on  Negligence,  401 ;  Chicago  Etc.  R.  R.  Co.  v.  Triplett, 
as  III.  482  :  Cliirago  R.  R.  Co.  v.  McLaugUlin,  47  HI.  2G5  ;  Cliicago  Etc.  R.  R.  Co. 
r.  Stumps,  5.5  III.  3<j7. 

-<;alliiii  r.  It.  R.  Co.  19  Wis.  G04;  Ind.  II.  R.  Co.  v.  McClure,  2(5  Ind.  370; 

111.   ('.   K.   R.  Co.   r.   Middlcsworth,  4(j  111.   495 ;    Chicago  Etc.   II.   R.   Co.   v. 

(•:nifrm;>n,  :;8  HI.  424;  1  Redlield  on  Railways,  404.      "The  decisions  upon 

ilu-  hul.jtft  of   injuries   to  domestic  animals   by  railways  are  very  numer- 

«ii*.   Injt   may  Ik;  reduced    to  a  comparatively   few   principles.     Where  the 

owner  of    (lin  nnimal.s  is  unahle  to  show  that  as  against  the  railway  they 

«<ri-  proiHTly  njicn  the  iraek,  or,  in  other  words,  that  it  was  through  the 

f..iilt  of  iho  conijnmy  that  they  were  enabled  to  come  upon  the  road,  the 

<<n)iiany  arc  not,   in  general,   liable,  unless,  aft«r  they  discovered  the  ani- 

'■      "    '   ■''    •''''''.  hy  the  exercise  of  proper  care  and  prudence,  liave  pre- 

ly."     It  is  to  be  observed,  however,  that  this  rule  yields  to 

;.  cniictment  hucIi  as  exists  in  some  of  the  States  whereby,  in 

f  I  lie  injury  is  made  i)rima  facie  evidence  of  carelessness  on  the 

'"^      (1  tanner  t'.  R.  R.  Co.  4  Rich.  Law,  ;]29;  Murray  v.  R.  R. 

•  ;;   '"  V  .  "  '■  ''■  ''•  *''^-  -*  ^"^^■"'  ^'^-;  ^Vhitbeck  v.  R.  R.  Co.  Id.  374; 

'■'*'•'  ''■".  •!-  111.  :i'X,.)  Rut  these  statutes  are  in  the  natureof  ex- 

i.<nil  rule.   (Shearman  t^-  Redfield  on  Negligence,  Sec.  470.)    "In 

l>r«M,f  tJuit  liorsesor  cattle  were  killed  by  a  train  is  sufficient 

•nee  of  negljgcuc,.  on  the  part  of  the  railroad  company.    This 

•re  the  eonunon  law  of  tlu;  State  binds  the  railroad  company  to 

'""  ""^  where  th..  English  common-law  rule  prevails,  the  plaint- 

""  "  'titer  evidence  than  thiH  to  make  out  a  prima  facie  ease.    The 


101  INJURY    TO    STOCK   BY   EAILROAB.  §  85 

tinctlon  lias  been  made,  in  this  respect,  between  injuries  to  pci'- 
manent  property  situated  along  the  line  of  the  railroad,  such  as 
injury  to  buildings  by  fire  communicated  by  the  company's  en- 
gines, and  damages  to  cattle  which  are  constantly  moving  from 
place  to  place,^  But  the  general  rule  appears  to  be  applicable, 
that  all  persons  are  bound  to  so  conduct  their  business  as  to 
avoid  doing  injury  to  persons  other  than  themselves,  who  have 
an  equal  right  under  the  law  to  pursue  their  avocations,  and  the 
running  of  railroad  trains  must  be  so  conducted  as  to  avoid  col- 
lisions with  animals,  where  due  precautions  could  prevent  them. 
As  to  what  are  proper  precautions,  the  observance  of  Avhich 
would  negative  the  charge  of  negligence,  is  a  question  of  fact, 

burden  of  proof  is  iipon  the  plaintiff  to  show  that  the  cattle  were  lawfully 
there,  and  that  the  railroad  comjiany  was  negligent.  And,  if  the  cattle  were 
not  lawfully  there,  he  must  prove  such  negligence  as  will  nevertheless  make  the 
<;omi3any  liable.  Even  where  cattle  may  lawfully  run  at  large,  the  South 
Carolina  rule  is  not  followed ;  and  the  plaintiff  must  prove  some  act  of  negli- 
gence. If  the  statutes  concerning  fences  are  relied  upon  as  the  ground  of  the 
action,  the  plaintiff  must  prove  the  want  of  or  defect  in  a  fence.  (Scott  v.  R.  R. 
Co.  4  Jones'  [N.  C]  Law,  432;  Jones  v.  R.  R.  Co.  67  K  C.  122;  Belief.  Etc.  R.  R.  Co. 
V.  Schruyhart,  10  Ohio  St.  116;  Ind.  Etc.  R.  R.  Co.  r.Wliarton,  13Ind.  509;  R.  R.  Co. 
V.  Brown,  23  111.  94;  R.  R.  Co.  v.  Sumner,  24  Ind.  631;  Walsh  r.  R.  R.  Co.  8  Nev. 
110.)  "In  actions  for  damages,  arising  from  alleged  negligence,  the  burden  of 
proof  is  on  the  plaintiff."  (Owens  r.  R.  R.  Co.  58  Mo.  388  ;  Norton  v.  Itner,  5G 
Mo.  351  ;  McDonnel  v.  R.  R.  Co.  115  Mass.  504.) 

And  "a  railroad  corporation  is  not  liable  for  killing  animals,  which,  being  un- 
la'W'fully  upon  a  lot  of  land,  go  thence  upon  its  track,  and  are  there  killed  by  a 
liassing  train,  although  it  was  the  duty  of  the  corporation  to  maintain  a  fence 
between  its  track  and  said  lot,  and  it  did  not  do  so,  iinless  the  killing  was  wan- 
ton or  malicious."    (Id.) 

Comstock  V.  R.  R.  Co.  32  Iowa,  376  ;  biit  see  McCoy  v.  R.  R.  Co.  40  Cal.  532, 
where  the  converse  of  the  proposition  is  held  to  be  law.  So  in  Macon  Etc.  R. 
R.  Co.  V.  Baber,  42  Ga.  300. 

1  Scott  V.  R.  R.  Co.  4  Jones'  Law,  433;  Ellis  ?;.  R.  R.  Co.  2  Ire.  138;  Piggot  v.  R.  R. 
Co.  3  M.  G.  &  S.  (54  E.  C.  L. )  229;  Herring  v.  R.  R.  Co.  10  Ire.  40S.  The  language  of 
the  opinion  of  this  last  case,  commenting  uiwn  the  two  preceding  ones,  is  :  "In 
both  cases,  fire  was  communicated  to  the  property  of  the  plaintiff— in  the  one  case 
a  barn,  in  the  other  a  fence,  was  set  on  fire  by  sparks  from  the  cars.  It  was 
proven  in  both  cases  that  the  cars  had  been  running  for  a  long  time  without 
doing  any  damage,  and,  things  remaining  in  the  same  condition,  the  fact  that 
fire  was  communicated  on  a  particular  occcasion  was  properly  held  to  be  prima 
facie  evidence  that  it  was  the  result  of  negligence."  The  opinion  then  proceeds 
to  point  out  the  distinction  between  a  barn  or  fence,  which  is  stationarij,  and  an 
animal,  which  has  the  power  of  locomotion,  and  the  conclusion  is  that,  in  respect 
to  the  latter,  the  principle  has  no  application,  because  things  do  not  remain  in 
the  same  condition,  and  the  presumption  of  negligence  in  running  into  an  ani- 
mal because  it  had  never  been  run  into  before  does  not  arise  because  the  animal 
would  not  have  before  been  where  it  could  have  been  run  into. 


§  86         INJURY  TO  STOCK  BY  RAILROAD.  102 

controlled  to  a  considerable  extent  by  statute,  and  is  a  matter 
of  fact  for  consideration  of  the  jury,^  except  Avliere  the  proof  is 
all  one  way,  either  in  favor  of  or  aguinst  negligence,  in  which 
case  the  infeivucc  is  always  one  of  laAv  for  the  Court.^ 

§  86.  First  duty  of  railway  companies  to  guaid  their 
trains. — It  Is  the  paramount  duty  of  a  railway  company,  in  the 
conduct  of  its  trains,  to  care  for  the  safety  of  persons  and  prop- 
erty traveling  and  being  transported  over  their  road ;  this  duty 
is  to  be  first  regarded,  and  subordinate  to  it  is  that  of  avoiding 
imnecessary  danger  to  animals  straying  upon  the  road.^ 

1  Toledo  Etc.  R.  R.  Co.  v.  Bray,  57  111.  514  ;  Rockf  ord  Etc.  R.  R.  Co.  v. 
Bray,  58  III.  49  ;  Cine.  Etc.  R.  R.  Co.  v.  Smith,  22  Ohio  St.  227  ;  Gilnian  v. 
E.  R.  Co.  GO  Me.  235  ;  Smith  v.  R.  E.  Co.  34  Iowa,  9G;  Keliher  v.  R.  E.  Co. 
107  Mass.  411  ;  Sa\^Trcr  v.  R.  R.  Co.  105  INIass.  19G  ;  Memphis  Etc.  R.  R.  Co. 
V.  Blakeney,  43  Miss.  218  ;  Bemis  v.  R.  R.  Co.  42  Vt.  375.  "The  liability  of  a 
railroad  company  for  the  killing,  by  a  train,  of  an  animal  Avliich  ■^^Tongfully 
strayed  upon  the  track,  depends  on  the  question  whether  the  engineer  of  the 
train  used  ordinary  care  to  avoid  doing  injury.  And  this  <juestion  is  for  the  de- 
termination of  tlie  Jury,  in  view  of  the  circumstances  of  the  particiilar  case." 

"Where  the  track  of  a  railroad  passed  through  a  cut  eighty  rods  long,  and  a 
horse  of  the  owner  of  the  land  was  near  the  track  at  the  entrance  to  the  cut, 
and  the  whistle  of  an  aiiiiroaching  engine  was  sounded,  and  the  horse  ran  upon 
the  track  and  into  the  cut,  whence  it  could  not  escape  up  the  sides,  and  the  en- 
gine was  run  on,  and  the  whistle  sounded,  thereby  continuing  to  frighten  the 
horse  until  it  iumjicd  into  a  trestle-work  at  the  other  end  of  the  ciit,  and  was 
killed,  when  the  engine  could  have  been  stojiped  after  the  horse  was  in  tlie  cut, 
and  before  it  jumped  into  the  trestle-work,  held,  that  the  company  was  guilty  of 
such  negligence  as  rendered  it  liable  at  common  law  for  the  value  of  the  horse. 
The  negligence  in  such  case  is  willful."  (Indianapolis  Etc.  R.  R.  Co.  v.  Mc- 
Bro\^'n,  OG  Ind.  229. ) 

-  Blorrison  v.  R.  R.  Co.  5(5  N.  Y.  307.  In  actions  ft)r  damages  against  railroad 
companies,  negligence  "is  not  in  every  case  a  question  for  the  jury  of  fact,  or  of 
fact  and  of  law,  to  be  given  to  the  jury  with  instructions.  "Where  the  facts  are 
undisputed,  the  question  of  contributory  negligence  may  become  one  of  law,  as 
the  other  questions  wliich  arise  upon  a  trial,  and  are  submitted  to  the  decisions 
of  the  Court  on  a  motion  fi;r  nonsuit  or  otherwise."  (JMcIutyrer.  R.  R.  Co.  37 
N.  Y.  287. ) 

"Although,  in  many  cases  where  tlie  facts  from  which  negligence  is  to  be  in- 
ferred are  vmdisputed,  the  question  of  negligence  is  one  of  law,  to  be  passed 
upon  by  the  Court,  yet  if  the  facts  are  disput(;d,  and  the  evidence  conflicting, 
the  question  sliould  always  be  left  to  tlie  jury."    (Owens  r.  R.  R.  Co.  58  IMo.  38().) 

3  "The  lirst  duty  of  a  railroad  companyisto  its  passengers ;  and  if  an  engineer 
is  compelled  to  choose  between  risking  tl;e  safety  of  passengers,  or  even  of 
freiglit  upon  his  train,  and  running  over  cattle  en  the  track,  he  is  justilied  in 
adopting  the  latter  alternative."  (Shearman  &  Redlield  on  Xegligence,  494; 
Louisville  Etc.  R.  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177;  Bemis  r.  R.  R.  Co.  42  Vt. 
375.) 


103  INJURY    TO    STOCK    IJY    HAILUOAD.  §  87 

The  liability  of  a  railroad  company  for  tlu;  killinj:;"  by  a  train 
of  animals  Avhirli  \vronji;fully  stray  up(jn  its  track,  in  all  cases 
not  strictly  provided  ior  by  statute,  depends  on  the  (jiiestion 
whether  the  engineer  of  the  train  used  ordinary  diligence  and 
care  to  avoid  doing  tlu;  injury.  This  is  what  is  submitted  to  the 
Court,  or  jury,  on  the  trial  of  the  action  for  damages,  and  re- 
gard must  be  had  to  the  circumstances  of  the  particular  case. 
There  is  no  strict  rule  which  compels  the  engineer,  on  seeing 
the  danger,  to  slacken  the  speed  of  the  train,  unless  he  can  do 
so  with  safety,  and  regard  to  the  necessities  of  the  case  as  to 
being  at  a  place  where  he  is  to  pass  another  train,  or  to  main- 
tain his  position  on  the  time-table  so  as  not  to  endanger  other 
trains. 

§  87.   Rail-way  companies  may  regulate  speed  of  trains 

without  regard  to  possibility  of  animals  having  got  upon  road- 
way. The  owner  of  cattle  who  does  not  keep  them  within  his 
own  inclosure,  when  he  might  do  so  by  proper  care,  cannot  re- 
quire of  a  railway  company  to  regulate  the  management  and 
speed  of  trains  with  reference  to  cattle  coming  upon  the  track. 
Such  companies,  like  all  others,  have  a  right  to  regulate  the 
management  and  conduct  of  their  business  solely  with  reference 
to  the  security  of  persons  and  property  in  their  charge,  not  only 
on  the  Individual  train  which  is  immediately  affected  by  In- 
trusion of  animals  on  the  roadway,  but  also  on  all  other  trains, 
the  safety  of  which  depends  upon  the  promptness  of  the  train  in 

"  Necessary  efforts  made  by  the  agents  of  a  railroad,  after  the  discovery  of 
cattle  on  the  track,  to  save  the  train  and  passengei's  from  threatened  danger, 
•would  not  render  the  railroad  liable,  even  though  they  might  result  in  injiny  to 
the  cattle."    (Owens  r.  11.  R.  Co.  58  Mo.  38G.) 

The  conflict  of  duty  -which  is  contemplated  in  these  cases  results  from  the  fact, 
■which  appears  to  be  conceded,  that  wliere  a  collision  with  animals  is  inevitable, 
the  safety  of  the  train  demands  that  speed  should  be  maintained  or  increased 
so  as,  by  concussion,  to  insure  the  throMing  of  the  animals  oif  the  track  by  the 
cow-catcher;  such  maintenan(;e  or  increase  of  speed  made  to  save  the  train  is  no 
evidence  of  negligence,  but  rather  of  extra  cai'c  on  behalf  of  the  passengers  and 
freight  on  the  cars. 

"  The  fir.st  and  paramount  duty  to  be  ob.served  when  danger  is  apprehended 
from  such  obstruction  [animals  on  the  track]  is  the  safety  of  persons  and 
pi'operty  on  the  train,  or  otherwise  lawfully  on  the  track,  and  as  to  such  the  law 
demands  the  exercise  of  the  highest  degree  of  care  and  diligence  by  the  company 
and  its  agents.  The  next  object  of  the  attention  of  the  agents  of  the  company 
is  the  safety  of  their  o^^Ti  property."     (I?emis  r.  R.  R.  Co.  42  Yt.  380.) 


§  87  IXJUEY    TO    STOCK    15Y    EAILROAD.  104 

the  Avay  of  Avliicli  the  animiils  are,  and  the  companies  may,  and 
in  fact  must,  make  their  plans  and  aiTange  their  time-tables 
upon  the  i-easonable  and  legal  presumption  that  other  persons 
will  perf(jrm  all  their  legal  obligations  toward  them,  and,  con- 
sequently, that  the  owners  of  domestic  animals  will  keep  them 
where  they  belong,  and  not  suffer  them  to  stray  upon  the 
track  of  a  railway  company,  unless  such  owners  are  prepared 
to  incur  the  legitimate  hazards  of  such  an  exposure.^ 

I5ut  the  duty  of  the  company  to  tlie  j)uljli(',  being  by  the  cor- 
poration duly  performed,  does  not  relieve  it  from  all  responsi- 
bility ;  there  is  another  and  further  duty,  second  in  importance 
and  subordinate  to  that  Avhich  it  owes  to  its  patrons  and  em- 
ployees, to  so  conduct  their  business  as  to  avoid  doing  needless 
injury  to  others ;  and  when  cattle  are  found  to  be  in  the  way 
of  a  train,  the  employees  of  the  company,  who  control  the 
movement  of  it,  should  do  all  in  their  power  to  avoid  running 
into  them.^ 

1  Bemis  v.  R.  R.  Co.  42  Vt.  375.  "The  use  on  land  of  engines  and  cars  running 
on  a  railroad  track  at  a  liigli  rate  of  speed,  tliougli  dangerous,  is  a  reasonaLle  use 
of  the  land,  because  it  is  for  a  proper  object  and  a  highly  beneficial  purjiose,  and 
the  danger  may  be  avoided  V)y  proper  care.  There  is,  certainly,  a  risk  to  cattle 
running  at  large  in  the  vicinity  of  an  uninclosed  railroad  track,  but  this  risk  the 
owners  of  the  cattle  must  take,  unless  they  choose  to  avoid  it  by  keeping  their 
cattle  Avitliin  tlieir  own  inclosures.  If  they  do  not  choose  to  do  tliis,  tliey  can 
ask  no  more  than  that  the  agents  of  the  railroad  comjiany,  in  the  legitimate  con- 
duct of  its  business,  running  its  trains  with  a  speed  regulated  by  the  grade  of 
the  road,  the  capacity  of  its  locomotive  power,  and  the  safety  of  the  persons  aUd 
property  carried,  shall,  vnth  due  regard  to  the  safety  of  persons  and  property  in 
their  charge,  being  the  paramount  consideration,  exercise  what  in  that  peculiar 
business  would  be  ordinary  and  reasonable  care  to  avoid  unnecessary  injury  to 
animals  casually  coming  upon  their  uninclosed  road.  Where  there  is  nothing 
in  the  running  of  a  train,  or  in  its  rate  of  speed  at  a  particular  jilace  and  time, 
inconsistent  with  the  general  and  legitimate  conduct  of  the  business  of  the  rail- 
road company,  we  cannot  see  how  the  occasion  and  necessity  therefor  can 
properly  concern  an  ovTier  of  cattle  running  at  large.  He  cannot  properly  dis- 
cuss with  the  company  the  proper  exercise  of  the  discretion  vested  in  its  agents 
as  to  the  time  or  occasion  of  nuining  its  trains,  and  has  no  right  to  bring  forward 
its  time-table  and  list  of  connections,  and  enter  into  an  inquiry  whether  the  rate 
of  speed  was  greater  than  usual  for  a  particular  train  at  a  particular  place,  and 
whether  such  rate  of  speed  was  necessary  to  make  a  connection,  or  avoid  a 
collision,  or  for  some  otlu;r  i^roper  object."  (Central  O.  R.  R.  Co.  v.  Lawi-ence, 
13  Ohio  St.  71;  Kerwhacker  v.  R.  R.  Co.  3  Ohio  St.  173.) 

2Ind.  Etc.  R.  R.  Co.  v.  Mclirown,  40  Ind.  220;  1  Redlield  on  Railways,  475; 
Louisville  Etc.  R.  R.  Co.  v.  Rallard,  2  Met.  (Ky.)  177;  111.  C.  R.  R.  Co.  v.  Raker, 
47  111.  205.  "Tlufre  is  no  strict  rule  that  the  engineer,  on  seeing  the  danger,  is 
bound  to  slacken  the  speed  of  the  train.    His  first  duty  is  to  jirovide  for  tho 


105  INJURY    TO    STOCK    15 Y    HAILItOAD.  §  88 

That  such  care  may  be  taken,  the  entrhie-drlver  must  keep 
strict  and  constant  watch,  and  that  \w.  may  <hj  so,  all  objects 
which,  not  heinj^  directly  upon  the  track,  yet  obstruct  his  vision, 
must  be  removed.^ 

§  88.  Laws  are  for  the  public  benefit. — Statutes  impos- 
ing responsibility  upon  raihvay  companies  for  injury  to  live- 
stock, are  for  the  benefit  of  all  persons,  and  not  alone  for  the 
protection  of  him  through  Avhose  land  the  road  runs. 

The  connnon  law  and  provisions  of  the  statutes  providing  for 
the  building  of  fences  by  the  railroad  companies  in  England 
appear  only  to  be  intended  for  the  protection  of  those  owners  of 
live-stock  Avhose  lands  lie  immediately  contiguous  to  the  roadway  ; 
and  the  obligation  on  the  part  of  the  company  to  make  and 
maintain  fences,  applies  only  as  against  the  owners  or  occupiers 
of  the  adjoining  close.^ 

But  the  benefit  of  the  American  statutes  is,  as  a  general  rule, 
not  confined  to  owners  or  occupants  of  land  immediately  ad- 
joining a  railroad,  but  extends  to  all  owners  of  animals,^  although 

safety  of  the  passengers  and  property  in  transportation;  liis  next,  to  secure  tlio 
property  of  tlie  company  from  danger.  Subordinate  to  t]icse  duties,  he  is  bound 
to  use  ordinary  means,  such  as  sounding  the  b(dl  or  wliistle,  or  other  measures 
appropriate  to  the  case,  to  avoid  doing  needless  injury;  and  if  lie  does  this,  the 
company  are  not  liable."  (Bemis  v.  U.  U.  Co.  42  Vt.  375;  JefCersonville  R.  R. 
Co.  V.  Chenoweth,  30  Ind.  3(j(j.) 

1  Ruiford  v.  R.  R.  Co.  4.;  Miss.  233;  Cecil  v.  R.  R.  Co.  47  Mo.  246;  Watson  »•.  R.  R. 
Co.  7  Phil.  (Pa.)  249;  Nashville  R.  R.  Co.  v.  Comans,  45  Ala.  437;  Xew  Orleans  R. 
R.  Co.  V.  Field,  4(5  Miss.  573.  "  In  an  action  to  recover  the  value  of  cattle  alleged 
to  liave  been  killed  on  defendants'  road  by  their  locomotive  and  train,  it  ap- 
peared that  the  cattle  could  have  been  seen  on  the  track  by  the  engineer,  if  he 
had  been  on  the  look-out,  for  a  distance  of  more  tlian  half  a  mile;  yet  he  made 
no  effort  to  slacken  the  speed  of  the  train.  Held,  it  was  gross  negligence,  for 
which  the  company  should  be  held  responsible,  even  tliough  the  cattle  were  upon 
the  track  without  the  fault  of  the  company."  (Chicago  R.  R.  Co.  v.  Barrie,  55 
111.  22G.) 

2  1  Redfield  on  Railways,  4€5;  Towns  r.  Cheshire  R.  R.  Co.  1  Foster,  303;  Sharrod 
V.  London  Etc.  R.  R.  4  Exch.  580;  Sand  9  Yict.  Chap.  20,  Sec.  08;  Ricketts  v. 
E.  &  \V.  I.  D.  Co.  12  C.  B.  100;  Jackson  v.  R.  R.  25  Vt.  150;  M.  S.  &  L.  R.  R.  Co. 
14  C.  B.  243.  Held,  "  that  a  railway  was  not  bound  to  fence  against  cattle  stray- 
ing upon  a  highway  running  along  the  railway,  and  that  they  are  not  liable  for 
any  injury  sustained  by  cattle  in  getting  from  such  highway  upon  the  railway 
through  a  defect  of  the  fences  maintained  by  the  company ;  althougli  the  cattle 
strayed  upon  the  highway  without  any  fault  of  the  owner."  (Brooks  v.  N.  Y.  & 
E.  R.  R.  Co.  13  Barb.  594;  2  Roll.  289;  Toledo  R.  R.  Co.  v.  Weaver,  134  Ind.  298.) 

8  Corwin  v.  'S.  Y.  &  E.  R.  R.  Co.  13  N.  Y.  42.  "The  duty  imposed  by  the  stat- 
ute upon  railroad  corporations  is  not  limited  to  the  maintenance  of  fences  and 


§  88  IXJURT    TO    STOCK    BY    RAILROAD.  106 

ill  some  of  the  older  States  tlie  common-law  rule  obtains,  that  a 
man  must  fence  his  cattle  in,  or  abide  the  consequences  of  their 
straying  abroad.^ 

On  the  other  hand,  the  common-law  rule  that  the  owner  of 
domestic  animals  must  fence  them  in,  is  not  of  universal  appli- 
cation in  the  United  States.  It  is  generally  admitted  to  be  in- 
consistent with  the  customs  and  necessities  of  the  people  there, 
and  the  common  laAv  was  adopted  so  far  as  it  was  adapted  to  the 
wants  of  the  people  when  the  State  constitutions  Avere  formed ; 
hence  this  rule  has  come  to  be  rather  an  exception,^  and  result- 
cattle-guards,  as  against  tlie  animals  of  adjoining  occupants,  or  those  lawfully 
in  the  highway."  (New  A.  R.  R.  Co.  v.  Ashton,  13Ind.  545;  New  A.  Etc.  R.  R.  r. 
Bishop,  13  Ind.  566;  Brown  v.  Providence  Etc.  R.  R.  12  Gray,  55.) 

1  Corwin  i:  N.  Y.  &  Erie  R.  R.  Co.  13  N.  Y.  47.  At  common  law,  the  owner  of 
cattle  must  keep  them  ujion  his  own  premises;  and  if  he  did  not,  they  were 
trespassers  when  they  strayed  upon  the  land  of  others,  and  the  owner  was  guilty 
of  negligence,  when,  by  failing  to  keei)  them  on  his  i^remises,  he  suffered  them  so 
to  stray.  When  his  negligence  contributed  to  the  occurrence  by  which  the  cattle 
were  injured,  the  owner  could  not  recover  on  the  gi'ound  of  negligence  of  others. 
(Eames  r.  Salem  R.  R.  Co.  98  Mass.  560.)  But  one  whose  animals  are  in  a  field 
adjoining  the  raih-oad,  by  license  of  the  occupier,  is  himself  an  occupier.  (Daw- 
son V.  Midland  R.  Co.  Law  Rep.  8  Exch.  8;  Midland  R.  Co.  v.  Daykin,  17  C.  B. 
12G;  Rust  V.  Low,  6  Mass.  94;  Thayer  v.  Arnold,  4  Met.  589;  Little  v.  Lathrop,  5 
Green.  R.  356;  Bush  v.  Brainard,  1  Cow.  78;  Holladay  v.  Marsh,  3  Wend.  142.) 

2  "The  owner  of  cattle  is  under  no  obligation  to  keep  them  on  his  premises.  If, 
however,  he  should  permit  them  to  run  at  large,  and  they  should  go  upon  the 
track  of  a  railroad  and  be  injured  unavoidably,  through  no  want  of  diligence  or 
care  on  the  part  of  the  agents  or  servants  of  the  railroad  company,  he  would  be 
without  redress."    (German  v.  P.  R.  R.  Co.  2(>  Mo.  441.) 

"It  is  the  law  in  England,  and  in  some  of  the  densely  populated  States  in  this 
Union,  that  the  o\^Tiers  of  cattle  shall  keep  them  inclosed,  and  if  they  stray 
therefrom  they  are  tresj^assers,  and  the  owners  are  guilty  of  negligence.  But 
such  is  not  and  never  was  the  common  law  in  Missouri.  It  is  oiiposed  to  the 
policy  of  the  State  in  its  present  condition,  and  whenever  it  has  been  attempted 
to  be  enforced,  it  has  met  with  resistance  and  condemnation."  (McPheeters  v. 
H.  &  St.  J.  R.  R.  Co.  45  Mo.  26. ) 

"Ko  conviction  has  more  thoroughly  occupied  the  public  mind  than  this,  and 
nothing  woidd  sooner  arouse  the  attention  of  the  community  than  tlie  appre- 
hension that  the  old  rule  of  the  common  law  was  to  any  extent  to  be  revived. 
As  early  as  1808,  the  act  for  regulating  inclosures  became  a  law,  and  from  tliat 
time  the  j^eople  have  rested  in  the  belief  that  they  incurred  no  responsibility 
and  were  guilty  of  no  fault  or  negligence  toward  others  in  turning  loose  tlieir 
cattle,  unless  when  their  cattle  tresi^assed  upon  lields  inclosed  in  the  manner 
prescribed  by  law.  An  injury  to  cattle,  imless  tresjiassing  upon  lii!lds  legally  in- 
closed, was  redressed  without  any  inquiry  whether  the  cattle,  when  they  re- 
ceived the  injury,  were  on  the  land  of  the  owner  or  that  of  the  individual  com- 
mitting the  A\Tong."  "  The  range,  as  it  is  called,  is  a  source  of  wealth  to  many  of 
our  citizens,  and  nothing  would  induce  them  more  resolutely  to  oppose  tlie  lo- 
cation of  a  railroad  in  tlieir  vicinity  tlian  the  knowledge  that  it  would  impose  on 


107  INJURY    TO    STOCK    BY    RAILROAD.  §  88 

ing  therefrom,  there  being  primarily  no  obligation  on  the  part 
of  the  OAvncr  of  live-stock  to  iiu;lose  them,  persons  on  whose 
premises  they  might  stray  are  obliged  to  protect  themselves  from 
their  incursions.  From  this  reasoning,  it  would  appear  that  where 
the  common-law  rule  docs  not  control,  the  company,  apart  from 
statutory  provision,  is  compelled  to  fence  or  pay  for  the  loss  of 
cattle  which,  by  reason  of  its  not  fencing,  get  up(jn  its  roadway 
and  arc  run  into,  unless  it  appears  that  the  accident  coidd  not 
have  been  avoided  by  the  exercise  of  ordinary  care,  reference 
being  had  to  the  circumstances,^  and  the  burden  of  })roof  gen- 
erally is  upon  the  plaintiff  to  establish  negligence,  where  the 
statute  does  not,  in  terms,  make  the  fact  of  the  collision  prima 
facie  evidence  thereof.^ 


tliem  the  obligation  of  keeping  their  cattle  and  stock  in  inclosures.  That  obli- 
gation would  not  be  confined  to  those  in  the  immediate  neighborhood  of  the 
road,  for  cattle,  when  not  confined,  frequently  stray  much  further  than  would 
be  supposed  by  those  not  acquainted  with  their  habits.  Many  farmers  have  a 
sufficiency  of  uninclosed  land  for  the  pasturage  of  their  cattle.  Shall  they  be 
bound  to  inclose  it  at  a  jieril  of  a  suit  for  an  injury  caused  by  their  cattle  which 
may  cost  them  their  estates  ?  The  other  interests  of  the  State  are  not  all  to  be 
made  subservient  to  the  railroad  interest.  That  interest  enters  into  competition 
with  other  jiursuits,  with  the  advantages  and  privileges  the  law  confers  upon  it, 
but  there  is  nothing  in  it  of  so  over-shadowing  a  character  that  all  other  pur- 
suits must  yield  to  it.  There  are  none  who  are  not  imjiressed  with  the  import- 
ance of  railroads,  and  their  great  utility  as  the  medium  of  intercourse  and  com- 
merce. Ko  State  that  will  keeii  i)ace  with  the  age  but  must  build  and  encour- 
age them.  But  we  should  be  cautious  how  we  clothe  them  with  privileges  and 
immunities,  at  the  cost  of  the  rest  of  the  community,  which  may  enkindle  a 
spirit  hostile  to  their  existence  and  seeking  its  gratification  in  their  destruction." 
Gorman  r.  P.  R.  R.  2G  Mo.  44(>-7.  But  under  the  law  of  Missouri,  as  it  now 
stands,  a  railroad  company  is  not  resiionsible  for  stock  injured  by  trains  when 
such  killing  takes  iilace  at  a  part  on  their  road  where  it  is  not  fenced,  and  where 
it  does  not  pass  through  or  along  inclosed  or  cultivated  fields  or  inclosed  prairie 
lands,  unless  actual  negligence  be  proven.  (]Musick  v.  A.  &  P.  R.  R.  Co.  57  Mo. 
i;^. )  "  A  railroad  company  is  liable  for  injuries  to  stock  caiised  by  its  negli- 
gence where  the  jilaintiff  has  contributed  to  the  injury  no  further  than  merely 
liermitting  his  stock  to  run  at  largo."     (Searles  r.  R.  R.  Co.  So  Iowa,  49!).) 

1  111.  C.  R.  R.  Co.  V.  Baker,  47  111.  295.  "The  mere  fact  that  an  animal  is  at  large 
by  the  "  permission  of  the  owner,  and  is  run  over  and  killed  by  the  locomotive, 
does  not  justify  the  conclusion  that  tlie  injury  was  occasioned  by  the  willfid  act 
of  the  owner,  and  in  an  action  against  the  railroad  company  to  recover  for  the 
loss  of  the  animal,  the  burden  of  proof  to  show  a  willful  act  on  the  part  of  the 
plaintiff  rests  on  the  railroad  company.  (Stewart  v.  R.  R.  Co.  32  Iowa,  5G1; 
Memphis  R.  R.  Co.  v.  Orr,  43  Miss.  288;  New  Orleans  R.  R.  Co.  v.  Field,  4(1  Miss. 
573;  Id.  578.) 

2  Georgia  R.  R.  Co.  v.  Anderson,  33  G a.  110;  Georgia  R.  R.  &  B.  Co.  v.  jNIun- 
roe,  49  Ga.  373;  Cleveland  v.  Q.  R.  R.  Co.  35  Iowa,  220.  "In  an  action  against 
a  railroad  company  to  recover  for  stock  killed  by  a  passing  train,  the  burden  is 


§  89  INJURY    TO    STOCK    BY    RAILROAD.  108 

§  89.  As  to  gates  and  other  openings  in  fences  along 
rail"ways,  the  duty  of  the  company  is  to  keep  them  eh)sed. 

The  (hity  l)y  .statute  imposed  upon  railroad  companies  to 
buihl  fences  ah)ng'  tlie  sides  of  tlieir  roadway,  so  as  to  ])revcnt 
animals  from  straying  upon  the  track  and  being  injured,  in  con- 
junction with  the  further  obligation,  which,  in  certain  cases,  is 
imposed  upon  them,  of  making  such  crossings  as  will  permit 
farmers  to  get,  with  their  wagons  or  live-stock,  across  the  track, 
makes  a  necessity  for  gates  or  bars  in  the  fences,  and  the  ques- 
tion of  how  far  the  company  can  be  held  liable  for  injury  to 
domestic  animals  which  get  upon  the  track  by  reason  of  these 
gates  being  left  open,  or  bars  down,  may  become  matter  of 
intei-est. 

The  general  rule  deducible  from  the  authorities  is,  that  if 
such  an  opening  in  the  fence  is  left  as  that  cattle  may  stray  upon 
the  track,  Avhether  it  be  by  gate  or  bars,  with  the  consent  of 
the  company  or  without  it,  and  the  same  is  left  open  an  unrea- 
sonal)le  length  of  time,  the  company  is  liable  for  injuries  to  live- 
stock which  may  enter  througli  the  breach  upon  the  roadway 
and  track,  after  the  agents  and  employees  of  the  company 
have  had  reasonable  time  to  shut  the  gate,  put  up  the  bars,  or 
otherwise  close  the  opening.^  Nor  does  it  make  any  difference 
that  none  of  the  employees  of  the  company  became  aware  of 
the  fact  that  the  fence  was  broken,  bars  down,  or  gate  left  open ; 
it  is  the  duty  of  the  company  to  not  only  build,  but  maintain, 
the  fences  prescribed  by  the  statutes,  and  for  dereliction  in  the 
performance  of  that  duty  the  company  is  liable.^     While  the 

upon  the  plaintiff  to  show  either  that  the  killing  or  injury  was  clone  at  a  jioint 
where  the  company  had  the  right  to  fence  and  had  not  fenced,  or  that  the 
company  were  guilty  of  negligence  in  causing  tlie  injury."  (Comstock  r.  11. 
R.  Co.  32  Iowa,  370.) 

1  McDowell  r.  R.  R.  Co.  37  Barb.  195  ;  Munch  v.  R.  R.  Co.  20  Barb.  047  ;  Brown 
V.  R.  R.  Co.  21  AYis.  39;  Chicago  Etc.  R.  R.  Co.  v.  Reid,  24  HI.  144;  Bartlctt  r. 
R.  R.  Co.  20  Iowa,  188;  Ind.  Etc.  R.  R.  Co.  r.  Snelliug,  10  Ind.  435. 

"But  a  railroad  company  is  not  liable  for  stock  killed  on  their  track,  unless 
they  have  actual  or  implied  notice  that  the  fence  was  doA^ni,  or  the  gate  ojien, 
and  a  reasonable  time  tliereafter  to  put  the  same  in  jiroper  condition."  (Ayles- 
wortli  1-.  R.  R.  Co.  30  Iowa,  459  ;  Dewey  v.  R.  R.  Co.  31  Iowa,  373.) 

2111.  C.  R.  R.  Co.  r.  Arnold,  47  111.  17.3.  "  AVhere  a  cow  entered  the  close  of  another 
tlirough  an  iusuflkient  fence  upon  the  highway,  and  jiassed  from  thence  througli 
a  space;  made  for  bars,  and  used  as  a  farm-crossing,  upon  the  railroad  track, 
and  was  killed,  and  it  was  proved  that  tlie  bars  had  l)etii  left  down  for  a  perioVl 


109  INJURY    CY    FIRE.  §  90 

companies  arc  not  required  to  keep  such  guard  over  their  roads 
as  would  Immediately  make  them  aware  of  a  breach  as  soon  as 
it  occurs,  and  immediately  to  close  It,  still  the  law  Is  such  as 
to  impose  upon  the  corporation  the  obli<^ation  of  keopinji; 
employed  such  a  number  of  men,  to  be  over  the  roadway 
dally  In  such  manner  as  to  discover  breaches  and  openings  In 
their  fences,  and  close  them  before  danger  results  from  the 
breach  or  opening,  allowing  animals  to  get  In  the  way  of  trains.^ 
Where  the  defect  or  opening  In  the  fence  results  from  the  neg- 
ligence of  the  owner  of  the  stock  injured,  the  company  cannot 
justly  be  held  responsible.^ 

§  90.  Reasonable  diligence  only  is  imposed  on  railroad 
companies  in  keeping  gates  shut  at  farm-crossings.  While 
the  law  does  impose  upon  railway  companies  all  reasonable  dili- 
gence in  maintaining  their  fences,  It  requires  of  them  no  more 
than  reasonable  and  ordinary  care  in  the  matter  of  so  keeping 
up  their  fences,  the  gates  closed  and  bars  up,  as  that  cattle  will 
not  be  likely  to  get  in  upon  the  roadway.  They  are  allowed 
sufficient  time  to  repair  damages  to  their  fences,  occurring  by 
storms  or  other  causes,  and  are  not  called  upon  to  exercise 
cxtraordlnaiy  care  or  diligence  In  the  premises,   such   as  the 

of  tliree  months  :  held,  that  tlie  statute  required  the  railroad  company  to 
'  erect  and  maintain '  a  sufficient  fence,  of  -which  the  bars  were  a  part,  and  that 
the  company  were  guilty  of  negligence  for  allowing  them  to  remain  do\vn  for  so 
long  a  time."    (Great  W.  E.  K.  Co.  r.  Helm,  27  111.  190.) 

1  Chicago  R.  R.  Co.  v.  Harris,  54  111.  528.  "  In  an  action  against  a  railroad  com- 
pany to  recover  for  injuries  to  horses  inflicted  by  a  train  on  defendant's  road, 
where  it  appeared  that  the  horses  passed  upon  the  track  through  an  open  gate  at 
a  farm-crossing,  the  company,  having  permitted  the  gate  to  remain  open  for  a 
week  previous  to  the  accident,  were  regarded  as  guilty  of  such  negligence  as  ren- 
dered them  liable." 

"  A  gate  in  a  fence,  which  the  defendant  is  bound  to  keep  in  r(>pair,  is  to  l)e 
regarded  as  a  part  of  the  same."     (Eates  v.  R.  R.  Co.  63  Me.  308.) 

2  Shearman  &  Redfield  on  Negligence,  459;  Poler  v.  R.  R.  Co.  IG  N.  Y.  47G;  Perry 
ti.  R.  R.  Co.  3(3  Iowa,  102.  "A  railroad  company  is  required  to  use  reasonable 
care  and  diligence  in  keeping  up  bars  leading  through  the  fence  inclosing  its 
right  of  way,  and  if,  by  reason  of  its  failing  to  use  such  care,  stock  passes  on  to 
its  road  and  are  injured,  it  is  liable  in  an  action  therefor.  But  it  would  not  be 
liable  for  such  injuries  if  th(;  bars  through  which  the  cattle  passed  on  to  the 
track  had  been  left  down  by  the  plaintiff  or  a  third  person,  unless  they  had 
continued  for  such  a  length  of  time  or  under  such  circumstances  in  this  condi- 
tion as  to  justify  the  inference  of  negligence  on  the  part  of  tlie  company  in  not 
seeing  and  putting  them  up."     (111.  C.  R.  R.  Co.  v.  Arnold,  47  111.  173.) 


§  90  INJURY    BY    rillE,  110 

maintenance  of  guards  through  the  night  to  prevent  injuries  to 
their  fences,  and,  if  the  fence  is  generally  sufficient,  the  fact 
that  in  one  place  it  is  not  so  as  to  turn  stock  is  no  proof  by 
itself  that  the  injury  resulted  from  the  company's  not  having 
repaired  the  Aveak  spot  or  closed  the  gap  ;  the  burden  of  proof 
that  the  neglect  of  the  company  is  the  cause  of  the  injury  being 
on  the  party  complaining  of  the  injury,  he  must  show  that  the 
animal  got  through  the  gap  or  over  the  weak  place,  the  value 
of  the  testimony  of  the  existence  of  such  gap  or  weak  spot  be- 
ing for  the  determination  of  the  jury.^ 

1  Shearman  &  Redfiekl  on  Negligence,  4G1.  "  Only  reasonable  or  ordinary  dili- 
gence is  required  of  railroad  companies  in  tlie  maintenance  of  their  fences. 
They  are  allowed  a  reasonable  time  for  repairs,  and  are  not  bound  to  keep 
watch  all  night,  for  example,  to  guard  against  injuries  to  their  fences.  If  within 
such  reasonable  time  tlie  fence  is  repaired,  the  company  is  not  liable,  imder  the 
statute,  for  cattle  entering  through  the  lireach.  If  the  fence  is  for  the  most  part 
maintained,  but  is  defective  in  particular  places,  the  owner  of  the  injured  cat- 
tle must  give  some  -pvooi  that  they  entered  at  a  defective  part  of  the  fence." 
(Lemon  v.  R.  R.  Co.  32  Iowa,  151;  Chicago  Etc.  R.  R.  Co.  v.  Barrie,  55  111.  22G; 
111.  C.  R.  R.  Co.  r.  Dickerson,  27  111.  55;  ]\lorrison  v.  R.  R.  Co.  32  Barb.  5G8.) 

But  in  some  States  a  hi(/h  degree  of  diligence  is  required.  (Antisdel  r.  R.  R. 
Co.  2;>  AVis.  145.)  The  latest  cases,  however,  are  to  the  effect  given  in  the  text. 
(Perry  v.  R.  R.  Co.  3G  Iowa,  105.)  "Having  built  the  fence  as  the  law  requires, 
the  leaving  of  bars  therein  down  by  some  third  person,  and  tliat  through  them 
cattle  have  strayed  upon  the  track  and  been  injured,  does  not  make  for  plaintiff 
a  prima  facie  case.  He  must  go  further,  and  show  that  the  defendant  was  guilty 
of  negligence  in  permitting  them  to  remain  down.  Having  built  the  fence  as 
the  law  requires,  the  leaving  of  bars  therein  Aovm  by  some  third  person,  over 
whom  defendant  has  no  control,  is  not  an  act  wliich  renders  defendant  liable. 
That  liability,  if  it  exists  at  all,  arises  from  its  conduct  after  the  bars  were  left 
down,  either  in  failing  to  put  them  up,  after  acquiring  knowledge  that  they 
were  down,  or  in  neglecting  to  use  reasonable  diligence  to  ascertain  such  condi- 
tion. And  the  burden  of  proving  these  facts  is  upon  plaintiff."  (Aylesworth 
V.  R.  R.  Co.  30  Iowa,  459  ;  Muldowney  v.  R.  R.  Co.  .32  Iowa,  17G.)  And  it  is  to  be 
observed  that,  in  some  of  the  States,  where  the  common-law  rule  as  to  keeping 
animals  within  inclosures  jirevails,  a  railroad  company  is  not  liable  for  animals 
injured  by  its  trains  where  tlie  animals  were  not  lawfully  in  the  land  adjoin- 
ing the  roadway  and  thence  got  upon  the  track  through  a  gap  in  the  fence. 
(McDonnell  v.  R.  R.  Co.  115  Mass.  5(34. ) 


Part  in. 


ANIMALS. 


113  HIRE    OF    ANIMALS.  §  91 


CHAPTER  VII. 

HIRE  OF  AXIMiVLS. 

§    91.  Contract  of  hire  of  animals. 

§    92.  Special  covenants  by  the;  letter  of  animals. 

§    93.  "Warranty  tif  title  impli(!(l  by  letting  animals. 

§    9i.  The  hirer  of  animals  must  feed  and  care  for  them. 

§    95.  Extraordinary  expenses  incurred  in  care  of  hired  animals. 

§    9().  When  hired  annuals  are  stolen,  loss  falls  on  owner. 

§    97.  Negligence  sufficient  to  charge  hirer  for  loss  of  animals. 

§    98.  Hirer  of  animals  liable  for  loss  from  servants'  negligence. 

§    99.  Hirer  of  animals  has  a  special  property  in  them. 

§  100.  If  the  hirer  of  animals  abuse  them. 

§  101.  Distinction  between  hirer  and  borrower  of  animals 

§  102.  BoiTower  of  animals  restricted  to  stipulated  use  of  them. 

§  91.  Contract  of  hire  of  animals. — The  hiring  of  animals 
implies  an  obligation  on  the  part  of  the  lessor  to  him  who,  by  the 
contract,  is  to  have  the  use  thereof,  that  for  the  period  of  the 
bailment  the  hirer  is  to  have  the  use  and  enjoyment  of  the 
property  to  the  extent  of  the  contract,  and  on  the  part  of  the 
hirer  to  fulfill  all  such  engagements  as  by  express  terms  he  has 
agreed  to,  or  are  by  law  imposed  on  him. 

On  the  part  of  him  who  hires  out  the  animals,  it  is  in  effect 
stipulated  that  he  is  to  deliver  them  to  the  hirer;  to  refrain 
from  every  obstruction  to  the  use  of  them  by  the  hirer  during 
the  period  of  the  bailment;  to  refrain  from  doing  anything 
which  should  deprive  the  hirer  of  the  benefit  contemplated  in 
the  transaction  ;  to  Avarrant  the  title  and  right  of  possession  to 
the  hirer,  so  that  he  may  have  the  full  and  unobstructed  use  of 
the  property,  and  to  warrant  the  animals  to  be  free  from  any 
fault  inconsistent  with  the  proper  use  of  them,  regard  being  had 
to  the  purposes  for  which  they  are  let. 

The  delivery  of  the  property  must  be  to  the  hirer,  unless 
otherwise  agreed;  and  this  should  be  with  all  suitable  and 
requisite  appendages  and  equipments,  in  view  of  the  purposes 
Farm— 8. ' 


§§  92-93  HIRE  OF  animals.  114 

of  the  hirer  in  taking  the  same ;  as,  if  a  horse  is  let  to  ride,  it 
shoultl  also  be  with  a  suitable  saddle  and  bridle.^ 

§  92.   Special  covenants  by  the  letter  of  animals.  —  On 

the  part  of  the  lettor  of  animals,  the  covenants  which  the  law 
implies  to  have  been  made  by  him  are  such  that  he  must  deliver 
to  the  hirer  the  subject  of  the  bailment  in  proper  condition,  and 
with  suitable  equipments  for  the  j)urposes  of  the  service  in- 
volved, and  if  he  fail  to  do  so  an  action  will  lie  for  a  breach  of 
the  covenant.  lie  must  deliver  to  the  hirer  the  animal  in  the 
condition  contemplated  by  the  parties  in  making  the  contract, 
and  if  b-y  accident,  unavoidable  casualty,  or  otherwise,  the  ani- 
mal has  become  injured  or  unsuited  to  the  employment,  the 
hirer  is  not  bound  to  take  it,  but  may  insist  upon  the  contract 
being  rescinded. 

From  principles  of  justice  it  results  that  the  lettor  should 
restrain  from  all  obstructions  to  the  hirer  in  the  use  of  the 
property  for  the  purposes  of  the  bailment ;  the  only  practical 
questions  involved  in  the  consideration  of  this  branch  of  the 
subject,  therefore,  are  Avhat  amounts  to  such  obstruction. 

Resumption  of  the  property,  or  any  other  act  by  which  the 
lettor  voluntarily  deprives  the  hirer  of  it,  is  a  clear  case  of 
violation  of  duty,  and  so  it  may  be  said  of  any  other  act  which 
prevents  the  hirer  from  using  the  same  as  contemplated  by  the 
parties  when  they  made  the  contract ;  as,  if  the  lettor  sells  the 
property,  or  suffers  it  to  be  attached  so  that  the  hirer  loses  the 
anticipated  use  of  it. 

In  such  cases  there  is  a  clear  violation  of  his  implied  contract.^ 

§  93.  Warranty  of  title  implied  by  letting  animals. 
—  An  implied  Avarranty  of  the  title  and  right  of  possession  to 

1  Story  on  Bailments,  p.  317;  Potliier  Contrat  do  Lonangc,  n.  53;  1  Domat 
Civil  Law,  by  Strahan,  Vol.  1,  p.  204-5.  This  distinj^iishcd  author,  in  liis  chajv 
tcr  on  tlie  Duties  of  the  Lessor,  says:  "The  lessor  is  bound  to  jirocure  the  free 
use  and  enjoyment  of  the  thing  leased,  to  the  person  to  whom  he  lets  it  out;  to 
deliver  the  same  to  him  in  a  condition  to  serve  the  use  for  which  it  is  hired;  and 
if  the  lessor  does  not  deliver  the  things  in  good  condition,  or  such  as  he  promised 
to  do,  tlic  lessee  may  recover  his  damages;  and  lie  will  be  still  more  entitled  to 
this  relief  if  tlie  projirietor  himself,  or  the  person  for  wliom  he  is  answerable, 
hinder  the  tenant  from  enjoying  the  jiroperty  leased." 

2  Potliier  Contrat  do  Lonangc,  n.  8(1,  87  ;  1  Domat,  Civil  Law  by  Strahan,  p. 
2G5,  15.  1,  Tit.  4,  Sec.  3,  Art.  4. 


115  HIRE    OF    ANIMALS.  §  94 

the  liirer  results  from  the  p;cner;il  reasoning  applicable  to  the 
sul)ject.  A  vendor  of  personal  [)ropcrty,  which  is  in  his  pos- 
session at  the  time,  by  iiis  sale,  at  a  fair  price,  is  deemed  to 
warrant  the  title  to  his  vendee ;  ^  and  so,  having  leased  the 
same,  it  would  appear  a  fortiori  he  agrees  to  maintain  the  pos- 
session which,  by  letting,  he  has  disposed  of  for  the  term  of 
the  lea^e.2 

This  applies,  of  course,  only  to  the  legal  claims  of  third  per- 
sons to  disturb  the  enjoyment  of  the  hirer  of  the  animals  leased, 
because  for  any  wrong  doing  of  a  third  party,  by  which  the 
hirer's  possession  is  disturbed,  he  must  look  to  the  law  for  his 
redress  against  the  author  of  the  trouble.  It  would  be,  by  far, 
too  severe  a  rule  to  impose  upon  the  lettor  the  responsibility  of 
the  wrongful  acts  of  all  persons  against  the  hirer,  as  that 
would  amount  to  a  peculiar  warranty  of  the  virtue  of  the  whole 
human  race.  For  the  wrongful  acts  of  third  parties  the  hirer 
has  always  his  remedy  against  them,  and  on  this  he  must  rely.^ 

§  94.   The  hirer  of  animals  must  feed  and  care  for  them. 

— The  expenses  incurred  in  keeping  a  hired  animal  in  suitable 
condition  for  use,  regard  being  had  to  the  object  in  view,  under 
the  civil  law  fell  upon  the  lessor,  and  that  the  necessary  dis- 
bursements should  be  made  by  the  bailor  has  sometimes  been 
considered  to  be  the  common-law  rule  in  the  premises,^  on  the 

1  2  Kent's  Com,  478. 

"  1  Domat,  p.  2G5,  Sec.  3,  Art.  2:  "If  the  tenant  is  expelled  by  an  eviction,  the 
lessor  is  liable  in  damages  for  the  interruption  of  the  lease  ;  for  although  this 
be  a  kind  of  casualty,  yet  the  lessor  is,  notwithstanding,  bound  to  procure  a 
free  and  undisturbed  possession  of  the  thing  to  the  tenant,  and  to  put  a  stop  to 
all  claims  made  by  any  other  person  to  the  thing  that  is  let,  in  the  same  manner 
as  the  seller  is  obliged  to  do  with  respect  to  tlie  thing  he  sells." 

8  Story  on  Bailments,  387:  "For  the  wrongful  acts  of  third  persons,  tlie 
hirer  has  his  remedy  against  them." 

*  Story  on  Bailments,  Sec.  388,  citing  2  Kent's  Comm.  Sec.  58G.  This  citation 
does  not  quite  sustain  the  character  ascribed  to  it  by  Story.  The  language  in 
the  section  of  Kent's  Com.  is :  "  The  lettor,  according  to  the  civil  law,  is  bound  to 
keep  the  svibject  in  suitable  order  and  repair,  and  to  pay  for  extraordinary  ex- 
penses necessarily  incurred  upon  it.  But  tlic  extent  of  the  obligations  of  the 
lettor  under  the  common  law,  on  the  point  of  repau's  and  expenses,  remains  to 
be  defined  and  settled  by  judicial  decision."  Such  is  the  opinion  expressed  in 
the  latest  (12th)  edition,  in  1873.  In  Harrington  v.  Snyder,  3  Barbour,  380, 
Snyder  let  a  horse  to  Harrington,  and  it  was  known  to  both  parties  that  tlie 
horse  was  lame.     A  price  was  fixed  for  the  use  of  the  horse,  and  Harrington 


§  95  HIRE    OT   ANTMALS.  116 

reasoning  that  an  agreement  on  the  part  of  the  lettor  to  bear 
these  expenses  arises  by  implication  from  the  fact  that  the  use 
and  enjoyment  of  the  thing  leased  cannot  be  had  by  the  bailee 
unless  it  is  not  only  delivered  to  him,  but  maintained  in  the  con- 
dition proper  and  meet  for  its  use.  Such  is  not,  however,  the 
rule  to  be  deduced  from  the  decisions  of  tlie  English  Courts^ 
the  general  tendency  of  which  is  that,  in  the  absence  of  all  stip- 
ulations or  customs  to  the  contrary,  the  hirer  must  keep  in  good 
order  the  property  which  is  the  subject  of  the  bailment.^ 

§  95.  Extraordinaiy  expeiises  necessarily  incurred  in 
the  care  of  a  hired  animal  must  be  borne  by  the  lettor  ;  '^  but  the 
hirer  shovild  inform  the  lettor  of  the  facts  as  qiiickly  as  the  cir- 
cumstances will  admit  of.  As  in  a  case  where  ii  hired  horse  is 
taken  sick  on  a  journey,  without  the  fault  of  the  hirer,  the  nee- 

said  the  lameness  made  no  difference  to  him  if  the  horse  perfoiined  liis  journey. 
The  journey  which  was  to  be  jJerformed,  and  the  length  of  time  wliich  the  hirer 
expected  to  be  absent,  were  expressly  agi-eed  upon  by  the  jiarties. 

The  horse  performed  the  journey  to  the  place  of  destination  without  apparent 
injury.  On  his  return  he  became  too  lame  to  proceed,  was  left  at  a  pu])lic  house, 
and  there  kept,  fed,  and  doctored  for  several  days. 

The  Court  held  tliat  the  expenses  incurred  at  tlie  iiublic  house  in  so  keeping, 
feeding,  and  doctoring  the  horse,  should  be  borne  l)y  the  lettor,  and  in  tlie  de- 
cision the  Court  says  that  it  is  the  duty  of  the  lettor  to  keep  the  property  in 
suitable  order  and  repair  for  the  purjioses  of  the  liailment. 

It  is  laid  down  as  a  rule  by  Pothier,  that  where  a  horse  is  let  to  one,  on  hire,  to 
be  keirt  by  him  for  a  certain  jieriod,  the  hirer  is  understood  to  bo  bound,  ac- 
cording to  the  common  usage,  to  pay  for  his  shoeing  during  that  time.  IJut  it  i.s 
otherwise  if  a  person  let  his  coach  and  horses  to  another  for  a  journey,  to  be 
driven  by  tlie  servants  of  the  lettor,  for  in  such  a  case  the  horses  are  under  the 
care  of  the  sor^-ants,  and  the  lettor  is  to  jiay  for  their  shoeing.  (Pothier  Con- 
trat  de  Lonange,  n.  109,  129,  159. ) 

This  reasoning  is  not  d(;emcd  quite  sound  in  all  respects,  as  it  would,  from  the 
general  rule  that  the  hirer  should  keep  the  jiroperty  in  such  condition  as  to  ful- 
fill the  requirements  of  the  bailment,  result,  that  even  in  the  instance  first  put, 
where  no  servant  went  along,  tlie  horse  ought  to  have  been,  at  the  outset,  on  the 
journey,  properly  shod  by  the  hirer,  and  if  by  accident  in  usual  wear  they  were 
knocked  off  or  worn  out  on  the  journey,  it  is  not  apparent,  under  the  rule,  wliy 
the  lettor  should  not  bear  tlie  wliole  (sxpense  of  shoeing. 

1  Evidently  the  common-law  rule  in  the  premises  differs  much  from  that  laid 
downi  by  Potliier:  the  lettor,  unless  there  is  an  express  agreement  to  that  effect, 
is  not  bound  to  repair,  vide  the  decisions  of  the  English  Courts. 

Pomfret  r.  Ricroft,  1  Saunders,  ."21-2;  Countess  of  Shrewsbury's  Case,  5  Rep. 
14  ;  Horsefall  v.  ISIather,  Holt's  N.  V.  7  ;  Walton  v.  Waterhouse,  2  Saund.  422  ; 
Taylor  v.  Wliitehead,  2  Doug.  745. 

-2  Kent's  Com.  Sec.  58G  ;  Story  on  Bailments,  Sees.  389,  o91  ;  Harrington  v. 
Snyder,  3  Barbour,  380. 


117  HIKE    OF    AXIMALS.  §  05 

cssary  expenses  incurred  in  caring  for  him  slionld  1)C  paid  Ly  tlic 
lettor,  and  this  whether  the  hors'e  recovers,  or  dies  of  the  mal- 
ady.^ These  expenses,  if  paid  by  the  hirer,  may  be  recouped 
against  a  claim  of  the  lettor  for  such  service  as  the  horse  had 
performed  before  becoming  disabled. 

The  risk  of  accidents  to  a  hired  animal  is  also  to  be  borne  by 
the  lettor,  and  so  long  as  the  hirer  exercises  ordinary  care,  pru- 
dence, and  skill,  he  is  not  responsible  for  damages  which  result 
from  causes  beyond  his  control.  Damage  happening  to  prop- 
erty let,  without  the  default  of  tlic  hirer,  and  while  it  is  em- 
ploved  in  the  use  for  which  it  Avas  hired,  must  be  sustained  by 
the  bailor.  The  bailee,  when  called  upon  for  the  property,  at 
the  end  of  the  time  for  which  he  has  hired  it,  must  deliver  it,  or 
account  for  his  default  by  showing  a  loss  of  it  by  some  violence 
or  accident,  which  hj  ordinary  care  he  could  not  have  pre- 
vented.^ 

1 2  Kent's  Com.  587 ;  Con-^-ell  v.  Smith,  8  Ind.  530;  Conwell  being  the  owner  of  a 
jack, /armetZ  him  to  Smith  for  a  standing  season,  for  certain  hire  specified  in  the 
contract;  the  animal  became  diseased,  and  it  was  shown  that  this  had  been 
caused  by  his  liaving  been  poisoned,  and  also  that  his  spermatic  cord  had  been 
punctured  by  some  sharp  instrument,  from  which  it  resulted  that  the  animal 
became  impotent;  but  it  was  not  shown  that  defendant  had  any  connection  with 
the  injuries  tufiicted  on  the  jack. 

It  was  held  that  the  loss  fell  upon  the  bailor,  under  the  general  rule. 

In  Iowa,  a  fai-mer  having  no  work  whicli  would,  in  winter,  afford  employ- 
ment for  his  mare,  agreed  with  his  neighbor  that  if  he  would  he  might  have 
the  use  of  her  through  tliat  Avinter  season,  for  her  feed  and  shelter  ;  the  propo- 
sition was  accepted,  and  the  animal  was  turned  over  and  used  by  him;  but  dur- 
ing the  Avinter  she  met  with  an  accident  and  died;  it  appeared  tliat  she  had 
had  fair  attention  and  care,  and  that  slie  was  lost  through  no  negligence  or  want 
of  ordinary  care.  Held,  that  the  lettor,  not  the  hirer,  must  stand  the  loss,  and 
that  the  arrangement  being  for  the  mutual  benefit  of  both  parties,  it  should  be 
regarded  as  an  ordinary  hiring,  the  care  and  feed  being  in  lieu  of  jirice  of  hire, 
and  should  follow  tlie  general  rule.     (Chamberlain  v.  Cobb,  32  Iowa,  p.  1()2.) 

Damages  happening  to  property  let  to  hire,  \vithout  the  default  of  the  liirer, 
and  while  it  is  employed  in  the  use  for  which  it  was  hired,  must  be;  sustained 
by  the  bailor.    (Miller  v.  Salisbury,  13  Johns.  211.) 

In  another  case,  (Edson  v.  Weston,  7  Cowen,  278.)  defendant  hired  and  re- 
ceived from  plaintiff  a  horse,  the  property  of  Fowle,  left  by  him,  Fowle,  in 
pledge  -with  Edson  for  securing  payment  of  a  debt;  defendant  agreed  to  return 
him  to  the  pledgee,  Edson;  while  defendant  so  had  the  property  it  was  taken 
from  him  by  the  constable  on  a  suit  against  Fowle,  the  pledgor,  and  sold.  Held, 
that  the  lettor,  Edson,  must  not  look  to  his  bailee  to  bear  the  loss,  but,  the  taking 
by  the  constable  being  a  tiling  beyond  tlie  control  of  the  hirer,  he  was  exoner- 
ated.    (Quere :  should  he  not  have  notified  the  pledgee  ? ) 

2  See  Ante,  Note  to  Sec.  94. 


§  9G  HIRE    OF    ANIMALS.  IIS 

§  96.  When  hired  animals  are  stolen,  the  loss  falls  on. 
the  ©"wner, — If  ;i  tlu'l't  of  hired  uiiimals  is  committed,  and  thus 
the  animals  are  h)st  wliilc  in  the  possession  of  tlie  bailee,  Avha 
has  hired  them,  the  rule  remains  the  same  ;  if  no  negligx'uce  or 
lack  of  ordinary  care  has  given  to  the  theft  ])ecidiar  o]){)ortimi- 
ties  to  rob,  the  loss  falls  still  upon  the  lettor  ;  the  rule  for  the 
measure  of  requisite  care  to  clear  the  hirer  being  ordinary  care 
and  precaution,  such  as  a  man  of  average  prudence  would  de- 
vote to  the  guarding  of  his  own  similar  property.  The  promise, 
it  is  true,  is  to  safely  keep,  and,  in  due  time,  return  the  property,, 
but,  under  the  ride,  the  understaziding-  of  such  a  promise  would 
be  deemed  to  be  that  the  hirer  would  use  due  diligence  and  care 
to  prevent  loss  or  accident ;  and  there  is  no  breach  of  trust  if,, 
notwithstanding  such  care,  the  animals  should  be  stolen.^ 

1  Field  V.  Brackett,  5G  Me.  12.'!.  Tlie  facts  of  the  case,  given  in  the  opinion, 
are  that  the  i^laintiff  hired  out  to  defendants  liis  wagon,  to  be  used  by  them  f or- 
a  month ;  it  was  admitted  by  defendants  that  they  made  a  verbal  agreement 
that  at  the  end  of  a  month  they  would  return  to  plaintiff  tlie  wagon  in  good 
order,  etc. ;  but  they  alleged  and  proved  that  it  was  stolen  from  them  while 
they  were  in  the  exercise  of  ordinary  and  jiroper  care  of  it ;  that  they  have 
never  been  able  to  lind  or  recover  the  same,  thougli  to  that  end  they  had  used 
all  care  and  diligence. 

The  learned  judge  (BaiTows)  wiio  wrote  the  opinion  states  and  logically 
sums  uji  tlie  proi^osition  and  reasoning  involved,  in  a  style  more  earnest  and  free 
from  wearisome  legal  phraseology  tlian  is  commonly  met  with. 

Placing  him.self  en  rapport  vnih  the  parties  and  the  transaction,  he  tlius  states 
the  2wobable  arrangement.  On  the  part  of  the  hirer,  "How  long  do  you  want 
it"  (the  wagon)  ?  "  A  month,"  is  replied.  "  Will  you  bring  it  back  in  good  shape 
in  a  month?"  "I  will."  Similar  questions  and  answers  miglit  and  i:)roba- 
bly  would  pass,  in  most  cases,  between  neiglibors  negotiating  such  a  transac- 
tion, without  either  the  lettor  or  tlie  hirer  snipposing  tliat  any  s]>ecial  obligation 
(beyond  that  which  the  law  imiilies  on  the  part  of  the  hirer,  to  be  guilty  of  no 
negligence,  and  to  return  at  the  time  appointed,  in  as  good  order  as  when  re- 
ceived, ordinary  wear  and  tear,  and  casualties,  for  which  no  blame  could  at- 
tach to  the  hirer,  excepted)  was  assumed  or  intended  to  be  assumed.  I  canry 
my  watch  to  a  watchmaker  to  be  repaired.  "When  can  I  have  it?"  "  In  a 
week."  Here  is  the  same  verbal  agreement,  and  upon  a  like  consideration,  as 
that  alleged  in  the  case  at  bar.  Yet  I  do  not  understand  tliat  tlie  watchmaker 
assumes  any  liability  for  safe  keeping,  difftjnuit  from  tliat  whieli  the  law  would 
impose,  if  he  said  notliing^  about  the  return  of  it  to  me.  "When  he  tells  me  I 
shall  have  my  watch  in  a  week  I  do  not  expect  him  to  add,  in  good  set  phrase, 
"provided  my  safe  is  not  robbed  in  the  meantime."  That  is  underetood  be- 
tween us. 

To  the  same  point,  Foster  u.  Banlc,  Etc.  17  Mass.  478:  Petty  r.  Overall,  42  ^Vla. 
145.  A  watch  and  chain  were  deposited  by  plaintiff  with  defendant  as  security 
to  indemnify  him  against  an  appeal  bond,  which  ho  had  signed  lor  plaintiff; 
these  articles,  with  projierty  belonging  to  himself,  his  wife,  and  daughter,  were 


119  HIRE    OF    ANIMALS.  §  07 

Anything  more  than  this  would  amount  to  an  insurance  of 
the  property,  which  cannot  be  presumed  to  have  been  intended ; 
to  establish  such  an  insurance  an  exj^rcss  agreement,  founded 
upon  adequate  consideration,  must  be  shown. 

§  97.  Negligence  sufficient  to  charge  the  hirer  for  injury 
to  or  loss  of  hired  animals. — What  constitutes  nc£i;ligence  or 
want  of  skill,  such  as  woidd  charge  the  hirer  with  the  loss  of 
or  injury  to  animals  hired,  depends  somewhat  on  the  circum- 
stances of  each  case. 

The  general  rule  is  that  the  hirer  shall  })rovide  them  with 
proper  food,  shelter,  and  care  during  the  time  for  which,  by  the 
contract,  he  has  them,  unless  there  is  some  express  understand- 
ing (pialifying  the  agreement  in  this  respect ;  and  where  no 
special  engagement  is  shown,  the  law  will,  by  implication,  cre- 
ate such  an  one,  and  hold  the  hirer  to  it.^ 

The  hirer  must  use  the  animal  in  a  careful,  prudent  manner, 
reference  being  had  to  its  condition  and  capability,  he  being  re- 
stolon  from  defendant's  house,  and  the  qtiestion  was  whether,  under  the  cir- 
cumstances, the  loss  of  the  watch  and  chain  by  theft  exonerates  defendant, 
the  pawnee,  from  liability  therefor  ?  The  rule  was  declared  to  be  that  the  lia^ 
bility  of  such  a  bailee,  if  the  pledge  be  stolen,  that  he  is  not  absolutely  liable, 
nor  absolutely  excusable.  If  the  theft  is  occasioned  by  his  negligence,  he  is  lia- 
ble ;  if  without  any  negligence,  he  is  discharged,  such  a  bailee  being  bound  for 
ordinary  care,  and  answerable  for  ordinary  neglect. 

The  conclusion  cannot  be  legitimately  dra^\^l  that  the  theft  of  the  watch  and 
chain  resulted  from  negligence  on  the  x^art  of  the  bailee.  To  the  same  jioint  see 
McEvils  V.  Steamboat  Sangama,  22  Mo.  187.  But  in  Brown  v.  Waterman,  10  Cush. 
(Mass. )  it  was  held  to  be  the  duty  of  the  bailee  to  show  that  he  used  due  i>re- 
caution  and  took  reasonable  care  of  the  property;  this,  however,  should  be  taken 
only  with  reference  to  the  general  rule,  that  the  burden  of  proof  of  negligence 
is  on  the  bailor. 

1  Story  on  Bailments,  Sec.  393. 

In  Massachusetts,  Carr  hired  a  horse  of  Edwards  to  make  a  specified  journey, 
which  he  made  ;  but,  when  he  returned  the  horse,  it  was  in  a  condition  mani- 
festing want  of  proper  care,  feeding,  and  attention,  and  finally  died  from  the 
effect  of  the  same.  It  was  claimed  that  when  at  the  end  of  the  outward  trip 
the  horse  was  not  properly  fed  and  cared  for,  and  that  death  resulted  from  this 
want  of  care.  The  Court  declared  the  law  to  be  that,  "to  entitle  the  plaintiff 
to  recover,  he  must  prove  that  the  death  of  the  horse  was  caused  by  the  over- 
driving, or  want  of  ordinary  care  on  the  part  of  the  defendant,"  and  tliat  if 
plaintiff,  after  the  horse  was  returned,  neglected  any  proper  care  or  treatment 
of  the  horse,  and  thereby  contributed  to  the  illness  of  the  animal,  so  that  the 
death  of  the  horse  was  occasioned  jiartly  by  the  misconduct  of  the  defendant, 
and  partly  by  the  negligence  of  the  plaintiff,  no  recovery  could  be  had  against 
defendant.    (Edwards  v.  Carr,  13  Gray,  234.) 


§  98  HIKE    OF    ANIMALS.  120 

sponsible  only  for  falling  iu  the  exercise  of  that  degree  of  care 
which  prudent  persons  generally  manifest  in  keeping,  caring 
for,  and  using  their  own  property  of  a  similar  character.  He 
can  only  be  made  liable  for  such  injuries  as  it  is  sho\\Ti  come 
from  an  omission  of  the  prescribed  diligence  and  exercise  of 
judgment,  or,  in  more  technical  language,  for  ordinary  negli- 
gence.^ 

If  a  man  hires  a  saddle-horse,  he  is  bound  to  ride  It  moder- 
ately, and  give  it  such  care,  stabling,  and  feed  as  a  man  of  com- 
mon discretion  would  to  his  own.  Doing  this,  he  is  not  liable 
to  any  damage,  shoidd  the  horse  be  lamed,  get  injured,  or  be- 
come sick ;  and  it  would  appear  that  he  is  not  bound  to  show, 
in  the  first  instance,  that  he  is  free  from  fault.  The  law  pre- 
sumes him  to  be  so,  and  the  burden  of  proof  of  culpable  negli- 
gence, want  of  skill,  or  absolute  ill  treatment,  devolves  upon 
the  lettor  of  the  animal.^ 

§  98.   Hirer  of  animals  liable  for  his  servant's  neglect. 

—  If  from  want  of  ordinary  care  the  hired  animal  be  injured 
or  lost,  whether  such  defaidt  be  on  the  part  of  the  hirer  or  of 
his  servants  intrusted  therewith,  or  the  children  of  the   hirer 

1  Jones  on  Bailments,  88  ;  Maynard  v.  Buck,  100  Mass.  40  ;  Hayes  v.Ho^vard,  G 
Geo.  213  ;  Bro-wne  v.  Johnson,  29  Texas,  43  ;  Foote  v.  Sterns,  2  Barb.  326 ;  Har- 
rington V.  Snyder,  3  Barb.  380,  in  which  it  was  held  (in  an  action  on  the  case 
against  the  liirer  of  a  horse  for  so  negligently  taking  care  of  him  that  he  be- 
came of  no  value)  that  the  burden  of  proof  of  negligence  was  on  the  bailor  ; 
that  it  was  not  enough  for  him  to  show  that  he  was  injured  while  in  the  posses- 
sion of  and  use  by  the  hirer,  but  it  must  be  shown  that  the  injury  was  caused 
by  the  fault  of  the  bailee. 

-  But  where  the  loss  occurs,  and  the  hirer  neglects  or  refuses  to  giA'e  any  ac^ 
count  of  the  cause,  a  presumption  of  negligence  arises,  which  seems  to  cast  the 
burden  of  proof  on  the  hirer.  (Logan  v.  Mathews,  (J  Barr,  418  ;  Bush  v.  ]\Iiller, 
13  Barb.  482  ;  Cummins  r.  Wood,  44  111.  41(i. )  But  a  careful  analysis  of  these 
cases  does  not  not  disturb  the  rule  cited  iu  the  text.  The  burden  of  jiroof  may 
be  on  the  iilaintiff,  but  given  a  certain  condition,  viz.,  the  hiring  of  the  animal, 
its  death  or  loss,  and  an  utter  refusal  of  the  hirer  to  give  the  exiilanation  of  the 
facts  and  circumstances  which  he  alone  can  be  cognizant  of,  may  well  give  rise 
to  a  presumption  of  negligence  which  he  must  rebut.  This  very  establishment 
of  the  presumption  is  an  assumption,  in  a  certain  way,  of  the  burden  of  jiroof. 

"The  degree  of  negligence  necessary  to  authorize  a  recovery  against  the  hirer 
of  a  horse,  which  died  during  the  bailment,  is  not  gross  negligence,  but  what  is 
called  ordinary  negligence  ;  and  ordinary  negligence  is  the  omission  of  that  dil- 
igence in  the  use  and  care  of  the  horse  which  the  generality  of  mankind  use  as 
to  their  own  horses  ;  and  the  omission  of  such  diligence  is  called  ordinary  neg- 
ligence."   (Jloorc  V.  Cass,  10  Kaus.  288.) 


121  HIRE    OF    ANIMALS.  §  90 

allowed  to  use  or  be  about  the  same,  the  hirer  is  responsi])le. 
lie  is  bound  to  use  the  animal  with  care  and  moderation,  not  to 
appl}"  it  to  any  other  than  the  designated  use,^  or  detain  it  for  a 
longer  period  than  that  for  which  it  was  hired,^  and  at  the  end 
of  the  term  return  it  to  the  bailor,  or  account  for  its  loss  by- 
some  violence,  theft,  or  accident ;  ^  but,  when  the  loss  is  shown, 
the  proof  of  negligence  or  want  of  due  care  is  thrown  upon 
the  bailor,  and  the  bailee  is  not  bound  to  prove  affirmatively 
that  he  was  not  to  blame. 

The  value  and  character  of  the  animal  must  be  regarded  by 
the  hirer  in  ascertaining  what  is  proper  care.  High-priced  or 
delicate  animals  should,  of  course,  not  be  classified  with  such 
as  are  commonly  treated  without  special  attention. 

Care  and  negligence  are  relative  terms ;  they  are  without 
precise  definition,  not  susceptible  of  exact  measurement,  and 
what  constitutes  them,  or  either  of  them,  can  only  be  determ- 
ined by  taking  into  consideration  the  circumstances  of  each 
case.  "  The  care  must  rise  in  proportion  to  the  demand  for  it," 
is  the  language  used  by  an  eminent  writer,*  and  the  rule  cannot 
be  more  correctly  stated. 

§  99.   The  hirer  has  a  special  property  in  the  animal 

leased  to  him,  for  the  purposes  expressed  or  implied  b}'  the  con- 
tract.^   He  also  acquires  the  exclusive  right  to  the  possession  of  it, 

1  Duncan  v.  R.  R.  Co.  2  Rich.  613  ;  Mayor  v.  Howard,  6  Geo.  213  ;  Harvey  v. 
Epes,  12  Gratt.  153. 

2  "Wheelock  v.  AYheelwriglit,  5  Mass.  104.  Tlie  Cliief  Justice  (Parsons)  says  : 
"The  defendant,  by  riding  the  horse  beyond  the  i^lace  for  which  he  had  liberty, 
is  answerable  to  the  plaintiff  in  trover  ;  for  thus  riding  the  horse  is  an  unlawful 
conversion." 

Swift  V.  ]Mosely,  10  Vermont,  208.  Swift  hired  of  plaintiff  a  farm  with  the 
cattle  and  .sheep  on  it ;  during  the  terra  he  sold  the  sheep  and  cattle.  Tlie 
action  was  trover  for  them  against  the  purchaser.  Held,  that  if  the  hirer  apply 
the  subject  of  bailment  to  a  purjiose  different  from  that  iirovided  by  the  lease, 
his  interest  is  determined,  and  the  lettor  is  entitled  to  the  property. 

8  Haines  v.  Little,  28  Ala.  236.  If  a  bailee  for  hire  sells  the  goods  without  au- 
thority, the  bailment  is  at  an  end.  The  sale  docs  not  carry  to  the  vendee  even 
the  right  of  possession  for  the  unexpired  part  of  the  term,  but  tlu;  bailor  may 
maintain  trover  even  against  the  bona  lido  purchaser.  (Loeschman  c  JIachin,  2 
Starkie,  311;  Cooper  v.  M'illomatt,  1  C.  B.  672.) 

*  2  Kent's  Com.  587  ;  Harris  v.  Packwood,  3  Taunt.  201 ;  ^Marsh  v.  Home,  5  B. 
&  C.  322. 

5  Jones  on  Bailments,  85,  86;  Bac.  Abr.  Bailment  "C."  In  Lee  c.  Atkinson, 
Yelv.  172,  it  was  held  that,  where  one  hired  a  horse  to  go  to  a  certain  place,  and 


§  100  HIRE    OF    ANIMALS.  122 

may  maintain  an  action  for  injury  done  to  it,  for  any  tortious 
dispo.sition  of  it,  or  for  any  act  of  a  third  party  Avliich  unlawfully 
interferes  with  this  enjoyment  of  the  use  of  the  animal  to  the 
extent  of  the  bailment.^  The  owner  lias  no  right  to  interfere 
with  this  possession  of  the  hirer,  or  disturb  him  in  the  lawful 
enjoyment  of  the  property  during  the  term  of  the  bailment;^ 
nor  can  the  animals  be  levied  upon  for  the  debts  of  the  owner, 
in  such  manner  as  to  interfere  with  the  possession  of  the  hirer ;  ^ 
and  even  if,  during  the  time  for  which  the  property  has  been 
let,  it  is  redelivered  to  the  owner,  unless  the  contract  be  termi- 
nated, he  is  bound  to  return  it  to  the  hirer.^ 

§  100.  If  the  hirer  abuse  the  animal,  or  otherwise  violate 
the  terms  of  the  trust,  it  is  a  question  not  free  from  difficulty 
how  far,  if  at  all,  his  title  and  right  of  possession  terminates. 

The  lettor  does  not  absolutely  part  with  the  title,  even  tempo- 
rarily ;  he  may,  as  well  as  the  hirer,  maintain  a  suit  against  a 
stranger  for  injuries  to  or  conversion  of  the  animals  ;  ^  he  still 
has  the  larger  and  more  beneficial  estate  in  the  ])roperty,  and  it 
ai)pcars  an  anomaly  that  he  cannot  be  allowed  to  protect  his 
property  from  such  treatment  as  is  manifestly  beyond  and  for- 
eign to  the  purposes  had  in  view  in   making  the  contract ;  it 

the  hirer  found  him  upon  a  road  to  another  place,  entirely  different  from  the  one 
lie  should  have  taken,  and  manifestly  on  a  journey  differing  materially  from 
the  one  for  which  the  horse  had  been  hired,  the  owner  should  not  be  justilied  in 
taking  the  horse  from  the  bailee;  the  misbehavior  of  tlie  bailee,  in  riding  to 
another  place  tlian  that  for  which  lie  had  hired  the  animal,  miglit  be  iiunislied 
by  an  action  on  the  case,  but  he  had  a  certain  property  in  tlie  horse  for  the  term 
of  the  bailment. 

1  Ibid;  2  Kent's  Com.  58G. 

-  Ilickock  V.  Buck,  22  Ver.  149.  This  was  trover  for  a  mare  and  colt.  Tlie 
defendant  leased  a  farm  to  plaintiff,  and  agreed  to  furnisli  him  a  pair  of  oxen 
and  a  horse,  to  carry  it  on,  and  llie  mare  in  question  was  furnislied  as  and  for 
tlie  stipulated  horse.  Afterward,  the  plaintiff,  without  defendant's  consent, 
took  away  the  mare  and  sold  her,  without  furnishing  any  other  horse  to  work 
in  her  place.  Held,  that  when,  under  the  contract,  defendant  placed  the  mare 
on  the  farm,  under  the  charge  and  for  the  use  of  the  jilaintiff,  he,  the  plaintiff, 
liaving  accepted  her  for  the  purposes  in  the  contract  siiecilied,  became  bailee  of 
th(!  mare,  coupled  with  an  interest,  and  a  riglit  to  detain  her  during  the  term  of 
tin;  demise;  that  he  had  the  exclusive  use  and  control  of  her  during  the  term, 
and  he  could  maintain  trover  against  the  defendant. 

'■'  Hartford  r.  Jackson,  11  New  Hampshire,  145. 

'  Roberts  r.  Wyatt,  2  Taunt.  Itep.  2(18;  ]5alford  v.  Flowers,  11  Humph.  242. 

''  I3ac.  Abr.  Trespass,  "  C  "  ;  Ibid,  Trover  "  C  " ;  2  Bl.  Com.  390;  Gordon  v.  Har- 
per, 7  Term  Rep.  9;  La  Coste  v.  Pipkin,  13  Sm.  &  Mar.  589. 


123  HIRE    OF    ANIMALS.  §  100 

seems,  however,  that  the  owner  is  bound  to  abstain  from  inter- 
fering with  the  enjoyment  of  the  property,  by  tlie  bailee,  dur- 
ing tlie  term,  and  he  cannot  justify  a  seizure  of  the  thing  by 
force  from  the  personal  possession  of  the  hirer,  whatever  may  be 
las  right  to  retake  it,  if  he  can  peaceably,  wherever  he  can  find 
it,  under  circumstances  of  danger  to  his  property.  ^ 

An  improper  use  or  abuse  of  the  property,  or  employing  it 
other  than  as  agreed  upon,  would  appear  to  amount  to  a  virtual 
determination  of  the  bailment,  so  that  there  would  not  seem  to 
be  any  reason  why  the  owner  shoidd  not  treat  the  bailee  as  a 
stranger,  and  retake  the  animal,  if  he  can  do  so  without  violence  ; 
he  certainly  may  maintain  trover  against  the  hirer  therefor ;  ^ 
and,  in  one  instance,  Avhere  a  mare,  which  had  been  hired,  was 
badly  treated,  over-driven,  and  left  ill,  at  a  distance  from  the 
home  of  the  lettor,  the  owner  was  not  only  authorized  to  go  for 
and  retake  her,  but  Avas  allowed  all  of  his  expenses  in  going  to 
her,  attending  upon  the  animal,  and  bringing  her  home.  ^ 

Where  the  bailee  converts  the  property  to  his  own  use,  the 

1  Lee  V.  Atkinson,  Yelverton,  172;  Story  on  Bailments,  Sec.  39C. 

2  Iljicl ;  AVilkinson  v.  King,  3  Camp.  335;  Loescliman  v.  Macliin,  2  Stark.  311  ; 
McLaughlin  v.  Lomas,  3  Strobli.  85;  Paley  on  Agency,  78,  79,  80;  Rotch  v. 
Hawes,  12  Pick.  135.  Trover  for  conversion  of  a  horse.  Defendant  hired  a 
horse  to  go  from  New  Bedford  to  Fall  River  and  back.  He  took  the  horse  in 
the  morning  for  the  pnri^ose  of  making  this  journey,  and  returned  liim  to  the' 
owner,  a  livery-stable  keeper,  at  night.  Immediately  after  the  return  of  the 
horse  he  was  taken  sick,  and  finally  died  of  this  illness.  It  ajipeared  that  de- 
fendant had  ridden  him  much  further  than  the  distance  agreed  upon.  And  it 
was  held  that  if  a  person  hire  a  horse  to  go  a  certain  distance,  and  he  goes  fur- 
ther, he  is  liable  in  trover  for  an  unlawful  conversion.  (Homer  v.  Thwing,  3 
Pick.  492.) 

3  Graves  v.  Moses,  13  Minn.  335.  In  this  case  defendants  hired  a  team — a 
stallion,  mare,  and  carriage — to  drive  to  a  certain  place  and  back.  By  bad  treat- 
ment, over-driving,  etc.,  the  mare  fell  sick  on  the  road,  and  was  left  at  a  road- 
side inn.  One  of  the  owners  went  to  see  after,  care  for  her,  and  bring  her  home. 
The  Court  held  that  ho  who  takes  a  thing  to  liire  engages  to  use  it  well,  care  for 
it  properly,  and  return  it  to  the  owner.  If  bad  usage  procure  the  loss  of  tlie 
property,  the  bailor  may  recover  from  the  hirer  the  value  of  the  property  lost 
through  Iiis  misconduct.  And  it  is  the  privilege,  probably  the  duty,  of  the  lettor 
to  use  all  reasonable  exertions  in  a  case  such  as  this  ;  to  use  all  reasonable  care, 
diligence,  and  skill,  to  save  the  animal's  life,  and  to  cure  it.  That  for  tlie 
ti'ouble  and  expense  he  is  put  to  in  so  doing,  he  may  have  judgment  against 
him  whose  misconduct  has  caused  the  occasion  therefor;  and  that  the  ex- 
penses and  loss  of  time  incurred,  in  going  to  and  from  where  the  sick  animal 
was,  should  be  included  as  a  natural  and  necessarily  incurred  part  of  such  loss 
and  exiiense. 


S  101  niRE    OF    ANIMALS.  124 

bailment  is  ended.  ^  Thus,  if  a  bailee  for  hire,  for  a  specified 
Icnuth  of  time,  sell  the  pi-operty  before  the  expiration  of  the 
term,  tlie  bailment  is  thereby  ended,  and  the  owner  may  main- 
tain trover,  should  the  vendee  refuse  to  deliver  it  to  him  on  de- 
mand. Nor  docs  it  alter  the  case  that  the  bailee,  by  his  con- 
tract, had  a  right  to  purchase  the  property  within  the  term  at 
an  agreed  price. 

§  101.  A  borrower  differs  from  the  hirer  of  animals, 

in  that  he  is  held  to  a  much  more  strict  rule  of  care  and  respon- 
sibility. 

Where  a  loan  is  gratuitous,  when  the  lender  derives  no  bene- 
fit from  the  transaction  and  looks  for  no  reward,  the  bailee  is 
bound  to  extraordinary  care,  and  is  responsible  for  injuries 
resulting  from  slight  negligence  on  his  part,  or  that  of  his 
employees,  children,  or  guests.^ 

1  Sargent  v.  Gill,  8  N.  H.  325.    See  Green  v.  Harris,  3  Iredell,  210. 

2  Jones  on  Bailments,  64  et  seq.  ;  Vangli  v.  Manlove,  3  Bing.  N.  C.  468,  475  ; 
Phillips  V.  Condon,  14  111.  84  ;  Scranton  v.  Baxter,  4  Sandf.  8. 

In  Bennett  v.  O'Brien,  37  111.  250,  the  jnsticc  (Lawrence)  says  :  "O'Brien  let 
Bennett  have  the  use  of  his  horse  without  compensation.  This  gratuitous  bail- 
ment imposed  on  the  borrower  the  duty  of  extraordinary  care."  The  animal 
died  while  in  the  possession  of  the  borrower  :  it  was  held  that  the  burden  of 
proof  was  upon  him  to  show  that  he  had  taken  such  care.  (Wood  v.  McClure,  7 
Ind.  155  ;  Eastman  v.  Sandborn,  3  Allen,  594  ;  Carpenter  v.  Branch,  13  Yern.  KJl.) 

Green  v.  Holliugsworth,  5  Dana,  173  ;  Howard  r.  Babcock,  21  111.  259.  This 
•was  an  action  for  debt.  It  appeared  at  the  trial  that  plaintiff  sold  his  farm  to 
defendant,  and  loaned  to  him  a  pair  of  work-mares  which  were  on  the  place. 
One  of  the  mares  died.  Defendant  proved  that  he  liad  taken  all  reasonable  and 
proper  care  of  her.  It  was  lield  that  unless  the  defendant  could  show  that  the 
death  of  the  animal  was  without  his  fault,  and  that  he  had  taken  extraordinary 
care  of  tlie  mare,  he  would  be  liable  for  her  value  ;  that  a  sliglit  degree  of  neg- 
lect in  the  care  of  an  animal  loaned  would  render  the  borrower  liable  for  its 
loss  or  death. 

A  borrower  of  animals  is,  of  course,  bound  to  feed  them  during  the  time  of 
the  loan,  unless  an  express  arrangement  to  that  effect  relieves  him  from  this 
duty,  (Hanford  v.  Palmer,  2  B.  <S:  i5ing.  359)  and  if  the  borrowed  animal  be 
returned  low  in  flesli,  the  presumption  would  obtain  that  he  had  not  done  so,  and 
the  bailee  be  put  upon  proof  would  have  to  take  tin;  affirmative,  and  sliow  that 
the  falling  off  in  condition  did  not  result  from  any  neglect  on  his  part.  (Bray 
V.  Mayne,  \  Gow.  1.) 

But  if  the  loss  or  damage  to  borrowed  animals  occur  through  casualties 
whicli  could  not  be  foreseen  and  guarded  against,  or  if  they  result  from  inevi- 
table accident,  tlie  borrower  is  not  liable.  Jones  on  Bailments,  67  ;  Story  on 
Bailments,  240  ;  "NVatkins  r.  Roberts,  28  Indiana,  167  ;  in  which  tlie  horse  was 
loaned,  ami  while  in  the  possession  of  the  borrower,  witliout  anj-^  fault  or  negli- 
gence on  liis  part,  it  was  taken  froui  liim  forcibly  by  a  detachment  of  cavalry 


125  HIRE    OF    ANIMALS.  §  102 

But  tlic  Icneler  must  not,  tliercforc,  be  careless  as  to  whom  ho 
loans  his  property ;  for  he  only  has  the  right  to  expect  such  a 
capacity  for  care  and  skill  as  belongs  to  the  age,  character,  and 
known  habits  of  the  borrower.  lie  should  not  loan  his  spirited 
horse  to  a  child  or  to  a  person  known  to  him  to  be  physically 
or  mentally  weak,  or  otherwise  incapable  of  exercising  due  care, 
and  if  he  do  so  it  must  be  at  his  own  risk  ;  for  the  owner  can- 
not reasonably  expect  greater  care  on  the  ])art  of  the  borrower 
than  he  had  a  right  to  presume  the  borrower  was  capable  of 
giving.^ 

§  102.  Borrower  of  animals  restricted  to  use  stipulated. 

— The  borrower  must  not  apply  the  animal  to  any  other  use  or 
employ  it  upon  any  other  Avork  than  that  agreed  upon  with  the 
owner.2  He  must  not  loan  it,  or  permit  any  other  person  to  use 
it  in  any  Avay.  Such  a  gratuitous  loan  is  a  personal  favor  to  the 
bailee,  and  may  well  be  induced  by  the  faith  that  the  owner  has 
in  his  special  capacity,  skill,  or  judgment  to  place  in  him  a  re- 
liance which  he  would  in  no  other.  It  docs  not  folloAv,  because 
the  owner  is  willing  that  one  for  whom  he  may  be  believed  to 
entertain  feelings  of  friendship  should,  for  a  time,  use  his  ani- 
mal, that  he  is  so  careless  of  his  interests  as  to  consent  that 
any  person  Avhatever  should  do  so,  and  it  is  not  for  the  person 
favored  to  presume  the  consent  of  the  owner  to  such  a  disposi- 
tion of  the  ])roperty  by  allowing  third  persons  to  have  the  cus- 
tody or  control  of  it.^ 

soldiers  of  the  anny  of  the  United  States  ;  this  -was  held  a  good  defense  to  the 
action  of  the  lender  against  the  boiTower  for  the  value  of  tlie  animal. 

1  Jones  on  Bailments,  65  ;  2  Kent's  Com.  574.  "If  a  spirited  horse  be  lent  to  a 
raw  youth,  and  the  owner  knew  him  to  be  such,  tlie  circumspection  of  an  expe- 
rienced rider  cannot  be  required,  and  what  would  be  neglect  in  one  would  not  bo 
in  another."  So,  in  Story  on  Bailments,  Sec.  2."7,  it  is  said  that  tlie  bailor  in 
such  cases,  of  loans  to  a  weak  or  inefficient  person,  who  is  known  to  bo  such,  or 
to  jiersons  who  are  young  and  witliout  experience,  may  fairly  be  presumed  to 
trust  to  the  known  habits,  condition,  or  chai'acter  of  the  bailee,  and  to  content 
himself  with  that  degree  of  skill,  diligence,  or  ability  which  he  is  known  to 
possess. 

2  The  right  to  use  the  thing  which  is  loaned  is  strictly  confined  to  such  pur- 
poses which  were  considered  bj'  the  owner  when  he  made  the  gratuitous  bail- 
ment. Being  without  consideration,  tlie  will  of  the  lender  cannot  be  supposed 
to  go  to  any  further  extension  of  tlie  gratuity  tlian  tliat  stipulated.  (Story  on 
Bailments,  Sec.  232  ;  2  Kent's  Com.  574  ;  Wheelockw.  Wheelwright,  5  Mass.  103.) 

3  Story  on  Bailments,  Sec.  234  ;  2  Kent's  Com.  574, 


§102 


HIRE    OF    ANIMALS.  126 


In  r.ingloe  v.  ;Morrice,  1  INIod.  210,  plaintiff  loaned  his  horse  to  defendant  to 
ride.  He  not  only  did  so,  but  permitted  the  horse  to  be  ridden  by  his  servant ; 
and,  on  complaint  by  the  lender,  the  Court  held  that  the  borrower  could  not 
properly  allow  even  his  servant  to  ride  the  horse,  as  the  favor  was  personal  to 
himself,  and  he  could  not  presume  as  to  what  the  owner's  wishes  might  be  in 
the  matter  of  his  servant's  using  him  ;  that  the  license  was  annexed  to  the  per- 
son of  the  defendant,  and  he  could  not  communicate  it  to  another. 

In  his  work  on  r.ailments,  Sec.  G9,  note  'M,  I\Ir.  .Tones  thus  states  the  rule  :  "  The 
right  of  iising  the  thing  bailed  is  strictly  oonlined  to  the  use  expressed  or  implied 
in  the  particular  transaction,  and  the  borrower,  l)y  any  excess,  will  make  him- 
self liable." 

In  Booth  V.  Terrill,  Ifi  Geo.  20,  it  was  held  that  the  borrower  is  bound  to  take 
good  care  of  the  thing  loaned  ;  to  use  it  according  to  the  intention  of  the  lender  ; 
to  restore  it  at  the  proper  time,  and  in  the  proi)er  condition  ;  and  that  a  loan 
being  strictly  gratuitous,  no  property  passes,  and  the  lender  may  terminate  the 
bailment  whenever  he  pleases. 

In  Jones  on  Bailments,  Sec.  70,  Note,  it  is  said:  "The  loan  is  to  be  considered 
as  strictly  personal,  unless,  from  other  circumstances,  a  different  intention  may 
be  presumed." 

The  leading  English  case  appears  to  be  that  of  Bingloe  v.  IMorrice,  1  Mod.  U. 
210,  in  which  trespass  was  brought  l)y  plaintiff  against  defendant  for  immod- 
erately riding  a  mare  which  plaintiff  had  loaned  to  defendant.  It  appeared  that 
not  only  had  defendant  used  the  animal,  but  had  permitted  his  servants  so  to 
do.  The  Court  ruled  that  "the  license  is  annexed  to  the  person,  and  cannot  be 
communicated  to  another." 

The  case  is  badly  reported,  and  the  citations  of  it  are  not  as  clear  as  is  to  be 
desired  ;  but  that  part  of  the  decision  quoted  is  clear  enough,  and  forcibly  states 
the  rule,  as  given  in  the  text.  Although  in  this  case,  by  Lord  North,  the  point 
is  made  that  there  is  a  difference  between  loaning  for  a  definite  and  an  indefi- 
nite term  ;  as,  if  the  loan  be  for  a  certain  term,  tlie  borrower  has  an  interest  in 
the  horse  for  that  time,  and  may  permit  his  servant  to  ride  ;  but,  where  the 
length  of  time  for  which  the  horse  was  loaned  was  not  limited,  he  had  no  such 
interest  as  would  justify  him  in  having  his  servant  ride  the  animal. 

The  force  of  the  distinction  does  not  appear,  and  it  is  probable  that,  in  that 
part  of  the  case,  the  reporter  has  misunderstood  the  judge. 


127  SALE   OF  ANIMALS.  §§  103-104 


CHAPTER  VIII. 

SALE  OF  ANi:\IALS. 

§  103.  General  rules  in  sales  of  animals. 

§  104.  Sales  made  by  minors. 

§  105.  Sales  made  by  married  women. 

§  106.  Sales  made  by  insane  persons  and  idiots- 

§  107.  Contracts  made  by  drunkards. 

§  108.  Mutual  assent  of  parties  to  a  sale. 

§  109.  Taking  animals  on  trial. 

§  110.  Fraud  vitiates  all  contracts. 

§  111.  Misrepresentations  of  material  facts  destroy  the  contract. 

§  112.  Concealment  of  material  facts. 

§  11.3.  Statute  of  Frauds  in  sale  of  animals. 

§  114.  Mistakes  as  to  material  facts  in  sale  of  animals. 

§  115.  Let  the  buyer  beware. 

§  103.     General  rules  in  sale  of  personal  property. — 

The  sale  of  animals,  and  the  laws  in  that  behalf,  involve  a 
consideration  of  the  general  principles  involved  in  sales  of  per- 
sonal property.  A  sale  only  occurs  when  there  is  an  absolute 
transfer  of  the  property,  for  a  price  agreed  upon  by  the  parties.i 
All  persons  who  are  competent  to  contract  may  become  par- 
ties to  such  sale,  but  it  must  be  remembered  that  all  are  not  so 
competent.  In  America,  the  exceptions  to  the  rule  that  all  per- 
sons may  buy  or  sell  personal  property,  are  now  practically 
reduced  to  infants,  married  women,  idiots,  lunatics,  and  drunk- 
ards. The  other  exceptions,  as  outlaws,  aliens,  seamen,  and 
slaves,  are  either  abolished,  or  are  of  so  little  practical  import- 
ance as  to  justify  us  in  disregarding  them. 

§  104.  Sales  by  persons  not  of  age. — Children  have,  in 
all  countries,  and  under  all  codes,  been  deemed  incompetent  to 
contract,  before  arriving  at  some  definite  age  fixed  by  hiAv,  upon 
the  hypothesis  that,  before  arriving  at  this  age,  the  judgment 

1  Story  on  Sales,  Sec.  1. 


§  105  SALE   OF  ANIMALS.  128 

and  powers  of  discriminating  are  not  properly  matured,  for 
which  reason  tlie  law  protects  them  from  fraud  or  artifice. 
This  age  of  legal  maturity,  throughout  the  United  States,  is 
generally  that  of  the  common  law,  twenty-one  years,  although  in 
some  of  the  States  females  attain  their  majority  at  eighteen. 

Contracts  with  infants  differ  from  those  by  adults,  on  both 
sides,  in  this :  that  where  an  adult  makes  a  contract  with  one 
under  age,  the  adult  is  bound,  but  the  infant  is  not ;  while, 
where  both  parties  are  competent,  both  are,  or  neither  is,  held,^ 
This  right  to  avoid  his  contract  by  the  child  is,  however,  per- 
sonal to  himself ;  he  alone  can  exercise  it ;  no  third  pei'son  can 
take  advantage  of  the  infancy  of  one  of  the  parties  to  avoid  an 
agreement,^  and  the  infant,  when  he  becomes  of  age,  may  affirm 
his  contracts,  and  thereby  render  them  of  full  force,  should  he 
see  fit  so  to  do.^ 

§  105.  Married  -women  are  not  legally  competent  to  enter 
into  contracts.  By  something  more  incomprehensible  than  "  a 
legal  fiction  "  the  law  makes  it  appear  that  when  a  woman  mar- 
ries she  becomes  bereft  of  reason  and  loses  all  capacity  for  the 
transaction  of  business ;  but  so  soon  as  death  or  divorce  takes 
away  her  husband,  she  resumes  her  normal  condition  and  power 
to  act  as  a  free  agent. 

That  the  commission  of  so  natural  an  act  as  getting  married 
really  has  this  peculiar  effect  upon  the  woman  is  hardly  proba- 
ble, and  the  rule  of  this  supremacy  of  the  husband  and  inca- 
pacity of  the  wife  in  all  business  matters  is  but  a  relic  of  that 
barbarism  which  prevailed  in  the  earlier  days  of  the  juris- 
prudence of  our  mother  country,  Avhen  brute  force  prevailed 
over  reason,  and  might  made  right.  It  was  consistent  with  the 
state  of  things  then  prevailing  that  man  should  hold  his  mate 

1  In  Thompson  v  Hamilton,  12  Pick.  428,  the  Court  says:  "The  rule  in  regard 
to  the  contracts  of  a  minor,  and  wiiich  was  established  for  his  protection,  is, 
that  they  are  voidable,  not  void;  they  are  valid  as  against  the  party  of  full  age, 
but  may  be  avoided  by  the  minor."  (Story  on  Sales,  Sec.  21.)  But  in  Boyden 
v.  Boyden,  9  JNIetcalf,  521,  it  is  said  that  if  the  infant,  when  he  becomes  of  age, 
disaffirm  the  contract,  it  releases  the  other  part.y  also. 

2  Nightingale  v.  AVithington,  15  Mass.  274;  Campbell  r.  Cooper,  .'54  N.  II.  06; 
Story  on  Sales,  Sec.  21. 

•'"Williams  r.  Moor,  11  Mces.  &  W.  25G;  Whitney  v.  Dutch,  14  Mass.  457;  2 
Kent.  Com.  pp.  2:34,  235. 


129  SALE    OF  ANIMALS.  §  105 

in  unreasoning  subjection  to  liis  Avill,  but  now,  when  our 
higher  civilization  is  best  marked  by  the  respect  sliown  to  women, 
it  is  an  anomaly  that  they  arc  yet  regarded,  when  married,  as 
being  incompetent  for  the  transaction  of  the  most  ordinary  busi- 
ness, and  cannot  make  a  contract  by  which  she  is  bound.' 

When  the  husband  assents  to  his  wife's  acting  in  a  business 
capacity  he  becomes  liable  for  her  acts  and  assumes  her  con- 
tracts,^ but,  this  being  an  exception  to  the  general  rule,  it  is  for  the 
person  who  relies  upon  this  assent  to  prove  that  the  wife  was 
acting  under  the  authoi-ity  of  the  husband.^  Where  an  express 
consent  or  authority  has  been  given  by  the  husband  to  his  wife 
to  act  in  or  to  conduct  a  negotiation,  there  is  ordinarily  but  little 

^The  rights  of  married  women  to  liokt  property  and  dispase  of  it,  and  even  to 
make  some  kind  of  contracts,  have,  of  late  years,  been  somewhat  more  justly 
recognized  by  legislation  in  certain  of  the  States,  but,  as  a  general  rule,  the 
common-law  disabilities  still  exist  throughout  the  Union. 

2  Montague  v.  Espinasse,  1  Car.  &  P.  o57;  Montague  v.  Benedict,  3  Bam.  & 
Cress.  G:!o;  Atkins?;.  Curwood,  7  Car.  &  P.  TOO;  Seaton  v.  Benedict,  5  Bing.  30; 
Emmettt'.  Norton,  8  Car.  &  P.  510;  Si)readbury  v.  Chapman,  8  Car.  &  P.  371; 
Mizer  v.  Pick,  3  Mees.  &  W.  481 ;  Lane  v.  Ironmonger,  13  Mees.  &  W.  38G ;  Keid 
V.  Teakle,  13  Com.  B.  G27. 

In  Sawyer  v.  Cutting,  23  Vermont,  486,  Mr.  Frazier  was  sick,  utterly  unable  to 
attend  to  his  affairs,  and,  at  times,  not  in  his  right  mind;  his  wife  took  care  of 
him,  managed  the  farm,  and  conducted  his  business,  but  there  had  never  been 
any  distinct  instructions  from  him  to  lier  so  to  do;  a  note,  which  Hindman  had 
given  to  Frazier,  became  due,  and  the  payee  was  ready  to  pay  it ;  he  did  so  to 
Mrs.  F,  the  husband  being  too  ill  to  either  attend  to  the  affair  or  know  anything 
about  it;  she  could  not  llnd  the  note,  but  afterward  it  ajipeared  in  tlie  hands  of 
a  third  party,  who  sued  the  maker  on  it ;  Hindman  pleaded  payment,  relying 
upon  the  payment  to  the  wife.  The  Court  held  that  the  power  of  the  wife  to 
act  for  or  in  the  place  of  her  husband  depended  solely  upon  the  fact  of  agency; 
that,  as  a  Avife,  she  had  no  power,  original  or  inherent,  to  bind  the  husband,  and 
that,  even  when  the  husband  is  sick,  unable  to  attend  to  business  from  any 
cause,  or  is  away  from  home,  the  wife  is  not  iiresumed  to  be  his  agent,  nor  is 
she  clothed  with  any  power  or  intrusted  with  any  authority  in  relation  to  his 
affairs,  other  than  that  which  is  customary  and  visual  to  confer  upon  the  wife, 
such  as  the  incurring  of  liabilities  for  necessaries;  that  she  has  no  discretion  to 
act  upon  in  such  an  emergency,  and  an  arrangement  made  by  her  witli  refer- 
ence to  her  husband's  business  affairs  will  not  be  binding  or  effectual. 

In  Nitingale  v.  Withrington,  15  Mass.  272,  the  learned  judge,  who  speaks  for 
the  Court,  says,  in  si^eaking  of  the  covenant  of  an  infant,  who  had  indorsed  a 
promissory  note:  "  Such  indorsement  is  not  like  one  made  by  a  femme  covert, 
for  a  note  iiayable  to  her  becomes  tlie  property  of  her  husband ;  her  acts  are 
absohitehj  void;  whereas,  those  of  an  infant  are  voidable  only."  (McClay  v. 
Love,  25Cal.  367.) 

3  Lane  v.  Ironmonger,  13  Mees.  &  W.  386;  Reid  v.  Teakle,  13  Com.  B.  627;  IMon- 
tagiie  V.  Espinasse,  1  Car.  &  P.  357;  Seaton  v.  Benedict,  5  Bing.  30;  ^Montague  v. 
Benedict,  3  Barn.  &  Cress.  635 ;  Story  on  Sales,  Sec.  53. 

Farm— 0. 


§  106  SALE    OF  ANIMALS.  130 

difficulty  in  establishing  the  fact,  and  where  no  such  assent  has, 
in  terms,  been  given,  the  circumstances  of  the  case  may  create  a 
legal  presumption  that  the  -wife  has  acted  by  his  authorization. 
Such  a  presumption  arises  when  the  Avife  purchases  such  arti- 
cles as  arc  necessaries  for  herself  or  family ;  and  if  it  appear 
that  the  wife,  with  the  husband's  consent,  has  acted  for  him  in 
the  matter  of  making  contracts  or  attending  to  Ijusiness  for  him 
in  the  same  connection  as  that  under  consideration,  it  may  also 
be  presumed  that  she  is  still  acting  for  him,  with  his  knowledge 
and  consent.^ 

§  106.  Insane  persons  and  idiots  are  incompetent  to  do 
any  business ;  but  if  the  lunacy  be  intermittent,  and  the  mind 
is  ordinarily  in  a  sane  condition,  the  party  may  contract  while 
he  is  unaffected  ;  and  if  the  lunacy  be  only  in  respect  to  one  cer- 
tain subject,  but  extend  no  further,  an  obligation  incurred  in 
relation  to  a  matter  not  involved  in  the  monomania  will  be  en- 
forced ;  but  the  insanity,  or  even  mental  hallucination  upon  a 
special  subject,  being  established,  the  bui-den  of  proof  of  the 
fact  that,  at  the  time  of  and  in  the  transaction,  the  i)arty  was  of 
sane  mind,  falls  upon  the  person  who  deals  with  him.^ 

1  Bently  v.  Griffin,  5  Taunt.  S56. 

2  An  eloquent  argitment,  wherein  was  fairly  discussed  the  rule  in  such  cases, 
was  made  by  Mons.  d'Aquesseau,  when  advocate-general  in  the  Parliament  of 
Paris,  in  the  case  of  the  Prince  de  Conti.  His  language  was:  "It  must  not  be 
a  superficial  tranquillity,  a  shadow  of  repose,  but,  on  the  contrary,  a  profound 
tranquillity,  a  real  repose;  not  a  mere  ray  of  reason,  which  serves  but  to  render 
its  absence  more  manifest  as  soon  as  it  is  dissipated;  not  a  flash  of  lightning, 
which  pierces  through  tlie  darkness,  only  to  render  it  more  thick  and  dismal; 
not  a  glimmering  twilight,  which  connects  the  day  and  night ;  but  a  perfect  light, 
a  lively  and  continued  radiance,  a  full  and  entire  day,  separating  the  two  nights 
of  madness  which  precede  and  follow  it ;  and  to  adopt  another  image,  it  is  not 
a  deceitful  and  f  aitldess  stillness  which  follows  or  forebodes  a  tempest,  but  a  sure 
and  steady  peace  for  a  certain  time — a  real  calm,  a  perfect  serenity ;  in  short,  with- 
out looking  for  so  many  different  images  to  represent  our  idea,  it  must  not  be  a 
simple  diminution,  a  remission  of  the  malady;  but  a  kind  of  temporary  cure,  an  in- 
termission so  clearly  marked  that  it  is  entirely  similar  to  the  restoration  to 
health.  And,  as  it  is  impossible  to  judge  in  a  moment  of  the  quality  of  an  in- 
terval, it  is  necessary  that  it  should  last  sufficiently  long  to  give  an  entire  assur- 
ance of  the  temporary  re-establishment  of  reason.  This  period  it  is  not  i^ossible 
to  define  in  general,  and  it  depends  on  the  different  kind  of  madness;  but  it  is 
always  certain  that  there  must  be  a  time,  and  that  time  considerable.  These  re- 
flections are  not  only  WTitten  by  the  hand  of  nature  on  the  minds  of  all  men,  the 
law  also  adds  its  characters  in  order  to  engrave  them  more  profoundly  in  the 
heart.s  of  the  judges."    (2d  Evans  Pothier  on  Oblig.  No.  3.) 


131  SALE    OF  ANIMALS.  §  107 

It  does  not  avail,  as  a  defense  against  the  plea  of  insanity,  that 
the  party  dealing  Avith  a  person  of  Aveak  or  diseased  mind  Avas 
not  aAvare  of  the  defect,  as  the  rule  is  that  there  must  he  a  mu- 
tual assent  to  make  the  contract,  and  one  party  Avas  not  able  to 
comprehend,  nmch  less  assent,  to  anything.^ 

§  107.   Contracts  made  by  a  drunken  person  are  also 

voidable;  the  hnv,  not  inaptly,  regarding  the  drnidvcn  man  as 
temporarily  an  idiot  or  insane  person.^  For  a  long  time  it  Avas 
a  matter  of  graA^e  doubt  Avhether  such  should  be  the  rule  Avhen 
the  drunkenness  AA^as  voluntary,  or  should  only  be  so  Avhen  it 
had  been  purposely  caused  by  the  other  party  to  the  contract. 
The  matter  noAA%  hoA^'^ever,  appears  to  be  settled ;  the  contracts 
of  drunken  persons  are  noAV  regarded  as  voidable,  though  not 
absolutely  void,  Avithout  regard  to  hoAV  the  drunkenness  Avas 
occasioned.^  But  the  drunkenness  must  be  so  absolute  and  com- 
plete as  to  render,  for  the  time  being,  the  drunken  person  incapa- 
ble of  understanding  the  contract  and  asscntino;  thereto.^ 

1  State  V.  Eeddick,  7  Kans.  (1871)  143;  Carpenter  v.  Carpenter,  8  Bush,  (Ky.) 
283.    But  see  Wilder  v.  Weakly,  34  JNId.  (1870)  181. 

2  Cory  V.  Cory,  1  Ves.  19.  "An  agreement,  reasonable  in  itself,  and  to  settle 
family  disputes,  not  set  aside  because  the  party  was  intoxicated,  no  advantage 
having  been  taken  of  it." 

This  case  is  much  cited,  and  the  decision  is  terse,  \'iz:  "  As  between  strangers, 
a  Court  of  Equity  will  not  assist  a  person  Avho  has  obtained  an  agreement  from 
one  who  was  intoxicated,  or  the  other  person  to  get  rid  of  it."  Hence,  it  a])- 
pears  that  he  who  is  sober  is  bound,  while  the  drunken  man  is  not.  (Phelan  v. 
Gardner,  43  Cal.  30G.) 

Stockley  v.  Stockley,  1  Vesey  &  Beames  R.  30,  was  another  case  of  settlement 
of  family  quarrels,  where  it  was  held  proper  to  make  such  a  settlement  when 
one  party  was  drunk,  but  that,  apart  from  this  exceptional  class  of  cases,  the 
rule  was  as  in  the  text.    (Newell  v.  Fisher,  11  Smedes  &  M.  431.) 

Pitt  V.  Smith,  3  Camp.  33.  It  appeared  that  the  defendant  had  become  quite 
drunk  before  signing  the  agreement.  Whereupon,  Lord  EUeuliorough  directed 
a  nonsiiit,  holding  that  "  an  agreement  signed  by  a  jierson  in  a  state  of  complete 
intoxication  is  void."  <Gore  v.  Gibson,  13  Mees.  &  AVels.  623;  King's  Ex.  v. 
Bryant's  Ex.  2  Haywood's  R.  [N.  C]  591.) 

3  French  ».  French,  8  Ohio,  214.  The  law  now  regards  the  fact  of  intoxication, 
and  not  the  cause  or  author  of  it;  and  a  contract  made  while  the  party  is  in 
such  a  state  of  intoxication  as  that  he  has  not  his  ordinary  discretion  and  judg- 
ment, vnll  be  set  aside,  although  the  other  party  had  no  agency  in  producing 
the  intoxication.  (Barrett  v.  Buxton,  2  Aikens,  1(57;  Story  on  Contracts,  Sec.  45; 
Story  on  Sales,  Sec.  15. ) 

4  In  Story  on  Contracts,  Sec.  45,  the  rule  of  the  measiire  and  extent  of  the 
drunkenness  requisite  to  be  proved  to  annul  the  contract  is  as  follows:  "Such 
drunkenness  must,  however,  be  so  excessive  and  absolute  as  to  suspend  the 


§  108  SALE    OF  AXIMALS.  132 

The  contract  by  one  who  i.s  fio  intoxicated  as  to  incapacitate 
him,  being  only  voidable,  it  Ktill  has  force  and  effect,  although 
subject  to  the  inherent  defect.  It  may  be  avoided  by  the  paity 
and  annulled  by  him,  upon  a  proper  exhibition  of  the  facts 
which  constitute  the  defect;  but  until  so  avoided  by  the  party 
having  the  right  to  annul  them,  such  contracts  as  are  only  void- 
able are  generally  of  binding  force  and  effect.^ 

§  108.  Mutual  assent  of  the  parties  to  a  sale  must  be 
fully  c.-,taMi.~lied  to  .-u.-taiu  it;  the  ujinds  of  the  buyer  and 
seller  must  meet  and  agree.  Such  assent  may  be  either  express 
or  implied,^  but  must  be  certain  and  definite,  as  an  offer  which 
is  not  clearly  made  and  unequivocally  accepted  is  no  bargain, 
and  may  be  receded  from ;  ^  so  soon  as  it  is  assented  to,  the  corn- 
pact  is  complete,  and  may  be  enforced. 

A  proposal  is  not  to  be  considered  as  a  continuing  one  unless  so 
made,  expressly  or  by  implication.  To  be  made  binding,  it  should 
at  once  be  accepted ;  because,  until  tlie  assent  becomes  mutual, 

reason  for  a  timft,  and  create  imjiotence  of  mind."  AJtTiough  it  is  true  that  a 
person  who  is  only  excited  hy  drink — who  Ls  hut  in  the  condition  of  merriment 
from  a  sr^cial  glas.s,  to  an  extent  which  revives  the  spirits  ratlier  than  stupefies 
reason,  (Puffendorf,  iJook  3,  Chap.  0,  Stc.  4) — cannot  generally  avoid  a  contract 
on  the  ground  of  flrunkenness,  yet  where  it  appears  that  he  was  so  excited,  anrl 
caused  to  he  inehriated,  even  to  the  less  extent,  Ijy  the  other  contracting  party, 
and  advantage  of  his  condition  taken  hy  that  other  party  to  urge,  or  over-in- 
fluence him,  he  would  he  entitUid  to  relief  from,  his  contract,  on  the  ground  of 
fraud  practiced  on  him  to  his  injury."    (Id.  Kec.  4.5a.) 

1  Jjrunkenness  can  constitute  no  defense,  unless  the  party,  on  hecrmiing  soher, 
di-savows  the  contract.  (Barrett  v.  Baxton,  2  Aiken's  Hep.  1G7.)  "  Intoxication 
only  renders  a  contract  voidahle,  and  not  void,  so  that  the  party  intoxicated 
may,  upon  recovering  his  understanding,  adopt  it."  (Story  on  Contracts, 
S<iC.  45.) 

2  Story  on  Sales,  Sf:c.  12.5.  The  assent  may  he  given  through  an  agent,  and 
such  consent  will  hind  the  principal,  although  the  agent  neglect  to  inform  his 
principal  as  to  what  he  had  done,  (Booth  r.  Pierce,  40  Barh.  117;  lieedy  v. 
Smith,  42  Cal.  24.x) 

3  WHiere  the  promise  of  one  party  is  the  consideration  for  the  promise  of  the 
other,  the  promise  mu.st  he  concurrent,  and  hind  hoth  parties,  to  hold  either. 
(Tucker  v.  AVoods,  12  .Tolins.  187;  Nortljam  v.  Cordon,  4/J  Cal.  582.) 

But  where  a  contract  ha<l  heen  made,  letters  passing  hetween  the  parties  pro- 
posing, hut  not  finally  consummating,  a  change  in  the  agreement,  it  was  held 
that  these  suhswiuent  deliherations  as  to  the  propriety  of  making  a  change  dirl 
not  vitiate  the  original  assent  to  the  contract.  (Alcott  v.  Boston  St.  Flour  M. 
Co.  OCush.  17.) 

A  refusal  of  the  property  at  a  stated  price,  held  under  advisement  hy  the  prf>- 
poHfcd  purchaser,  is  not  a  contract,  hecause  of  the  want  of  mutual  as,sent  of  the 
parties.    (Faulkner  r.  IleVjard,  2^5  Vcm.  452.) 


133  SALE    OF  ANIMALS.  §  109 

neither  party  is  bound  ;  but  where  a  custom  prevails  to  tlie  cil'ect, 
or  by  the  circumstances  of  the  case  it  fairly  appears  that  rea- 
sonable time  to  deliberate  upon  the  offer  was  allowed,  an  assent 
given  within  such  time  Avill  complete  the  contract,  unless,  in  the 
meantime,  the  proposal  is  withdrawn,^ 

The  assent,  also,  may  be  either  expressed,  or  it  may  be  implied 
from  the  circumstances  of  the  case  ;  and  although  mere  ordinary 
silence  would  not  generally  indicate  an  assent,  and  complete  the 
contract,  yet  if,  by  the  terms  of  the  offer,  it  is  inciunbent  on  him 
to  whom  it  is  made  to  express  his  dissent,  and  he  fails  to  do  so, 
or  when  his  conduct  in  the  premises  is  such  as  to  indicate  une- 
quivocally that  he  accepts  the  proposition,  his  assent  will  be 
implied.^ 

§  109.  Taking  animals  on  trial. — Where  the  owner  of  an 
animal  allows  the  person  wdio  proposes  to  buy  it  time  to  try  it 
before  determining  upon  the  offer  of  sale,  he  nuist  return  the 
property  before  the  time  expires,  or  his  assent  to  the  proposal 
may  be  presumed.^  Tlijere  is  nothing  in  such  offer  and  accept- 
ance of  the  use  of  the  animal  which  can  be  treated  by  either 
party  as  a  mere  bailment  for  hire ;  the  owner  of  the  animal 
would  not  be  justified  in  claiming  the  value  of  the  use  of  the 
animal  Avhile  so  in  the  custody  of  the  other  party,  and  the  pro- 
posed buyer  cannot  keep  the  animal  over  the  presci'ibed  period 
of  time,  and  shelter  himself  from  the  presumed  acceptance  of 
the  bargain  by  offering  to  pay  for  the  use  of  the  animal  during 
the  time  which  he  has  retained  it ;  and  when  an  offer  is  made, 
and  the  property  allowed  to  be  taken  on  trial,  without  any 
definite  period  of  time  being  fixed,  the  law  will  limit  it  to  a 

1  Martin  v.  Black's  Adms.  21  Ala.  721;  Story  on  Sales,  Sec.  126;  Johnston  & 
Lyon  V.  Feaslcr,  7  AVatts,  (Ponn.)  48;  Peru  v.  Tenner,  1  Fairf.  183.  A  Largain 
should  be  regarded  as  closed  when  nothing  remains  to  be  done  to  give  either 
party  a  right  to  enforce  it;  where  an  olTer  is  made  in  WTriting,  by  letter,  the 
presumption  arises  that  the  offer  is  a  continuing  one;  until  the  h-ttcr  is  received 
by  him  to  whom  it  is  sent;  and  so  tlic  offer  is  presumed  to  remain  standing  until 
it  is  expressly  revoked;  whether  the  iiroposition  was  at  a  certain  time  open  for 
acceptance,  is  a  question  of  fact  for  the  jury.  (INIactier's  Adms.  v.  Frith,  G 
Wend.  103;  Faulkner  r.  Hebard,  2f)  Vern.  452.) 

2  Corning  v.  Colt,  5  Wend.  253;  Train  v.  Gold,  5  Pick.  379. 
«  Story  on  Sales,  Sec.  128. 


§   110  SALE   OF  ANIMALS.  I3-I: 

reasonable  length  ;  and  if  the   animal   is  not  restored  witliin  a 
reasonable  time,  the  assent  to  the  piu'chase  will  be  presumed.^ 

§  IIQ.  Fraud  vitiates  all  contracts.  —  There  can  be  no 
assent  which  is  not  given  upon  a  fair  imderstanding  by  the  par- 
ties, free  from  imposition  or  mistake.^  If  diu^ess,  mistake,  or 
fraud  enter  into  the  contract,  it  is  not  binding.  A  common 
definition  of  fraud  is :  "  Every  kind  of  artifice  employed  by 
one  person  to  deceive  another."  Fraud  is  a  fact  to  be  passed 
upon  by  the  Jury,  taldng  into  consideration  the  circumstances  of 
the  transaction. 

He  "who  commits  the  fraud  is,  however,  at  the  option  of  the 
other  party,  held  to  liis  contract,^  and  he  wlio  has  been  de- 
frauded may  either  acquiesce  in  or  avoid  the  agreement,  pro- 
vided he  does  so  within  a  reasonable  time  after  he  discovers  the 

ilbid;  1  Joues,  (X.  C.)  131;  Moore  v.  Piercy.  A  contract  of  sale  of  horses, 
stipulating  that,  upon  the  purchaser's  failure  to  pay  over  to  the  vendor  the  lirst 
money,  on  tlieir  resale  they  should  be  subject  to  the  vendor's  order,  construed 
to  pass  the  title,  such  apjiearing  to  be  tlie  intent.  (Chamberlain  v.  Dickey,  31 
Wis.  G8.) 

2  It  has  always  been  admitted  to  be  an  impossibility  to  prescribe  a  definite 
rule  as  to  what  is  or  is  not  a  fraud.  The  only  definition  of  "fraud "  is  " fraud." 
(Story  on  Sales,  Sec.  158,  citing Hadleyet  als.  v.  Clinton  Co.  Etc.  13  Ohio,  (N.  S.) 
502.)  A  co^vhad  been  sold  for  81,050,  ujion  representations  and  advertisements  of 
a  sale  of  celebrated  foreign  cattle,  equal  to  any  previous  importations  from 
England.  The  sale  took  i^lace  Aug,  !)th,  1854.  There  was  a  printed  advertise- 
ment of  the  stock  advertised  for  sale  ;  there  was  a  sjiecific  advertisement  and 
description  of  the  animals  offered.  Of  the  one  sold  to  plaintiff,  the  description 
was  :  "Ko.  10.  Princess,  roan,  calved  in  1852,  bred  by  II.  W.  Stapleton,  got  by 
Ix)rd  Newton,  dam  Kate,  by  Isaac,  9239,"  etc.,  sho^ving  a  length  of  x>etligree, 
and  referring  to  the  number  in  the  herd-book.  As  a  matter  of  fact,  the  cow 
proved  to  be  four  years  old,  and  hence  this  advertisement — in  a  material  point, 
the  age  of  the  animal — was  false  ;  but  the  president  of  the  company  making  the 
sale  openly  jiroclaimed  that,  although  tlie  comjiany  had  full  confiderrce  in  the 
skill  and  honesty  of  their  agent,  who  had  purchased  tlie  stock,  and  on  whose 
rer)resentations  the  advertised  descriptions  were  based,  yet  that  the  comjiany 
did  not  warranty  the  rejiresentations,  but  offered  to  the  purchasers  all  means 
of  inquiry  at  command  of  the  company. 

The  Court  gave  the  rule  of  fraud  as  cited  in  the  text,  pp.  50(5-7,  but  in  tlie 
special  case  held  that  there  was  no  fi*aud  ;  that  no  wan-anty  was  offered  or 
expected  as  to  the  age  of  the  cow  ;  no  untniths  were  uttered  or  accejited  by 
the  vendors,  the  importing  company  ;  they  grave,  or  professed  to  give,  what  in- 
formation they  had,  and  tendered  to  purchasers  the  same  means  which  they, 
the  vendors,  had  for  informing  themselves.     (Carter  i:  Abbott,  33  Iowa,  180.) 

8  Story  on  Sales,  Sec.  485  ;  Ibid,  Sec.  159.  Thus,  where  the  defrauded  party  sees 
fit  to  settle  the  matter,  he  being  aware  of  tlie  fraud,  he  has  no  relief  after  hav- 
ing voluntarily  released  him  who  had  committed  tlie  fraud,  and  accepted  tlie 
contract  after  knowing  of  the  fraud.     (Parsons  i-.  Hughes,  9  Paige's  Ch.  11.  571.) 


135  SALE    OF  ANIMALS.  §  111 

frautl.^  But  if  both  parties  are  guilty  of  fraud  the  Lnv  Avill 
leave  them  as  it  ilnds  them,  and  will  enforce  no  claim  by  one 
against  the  other.^ 

§  111.  Any  misrepresentation  of  a  material  fact  annuls 
a  contract  made  on  the  basis  of  it,  whether  the  party  making 
the  false  representation  knew  it  to  be  so  or  not;'^  so  that  it  is  not 
absolutely  essential  that  the  fraudulent  intent  be  susceptible  of 
proof,  or  to  show  that  the  person  wlu)  has  committed  the  fraud 
has  been  benefited  by  it,  or  to  prove  that  there  has  been  collu- 
sion with  the  party  who  is  so  benefited. 

Where  any  trick  has  been  played  or  artifice  used  by  which  a 
party  has  been  deceived,  and  by  means  of  the  deception  induced 
to  make  the  contract,  it  cannot  be  enforced  against  hmi. 

An  exception  to  the  general  rule  appears  to  be  established  in 

1  Bruco  V.  Davenport,  3  Keyes,  472.  "It  is  tlie  duty  of  a  party  who  proposes 
to  disaffirm  a  contract  entered  into  by  himself  as  fraudulent,  to  do  so  at  once 
upon  the  discovery  of  the  fraud.  It  will  not  do  to  await  a  possible  beneficial 
issue  to  the  contract,  and  to  repudiate  it  only  when  the  danger  to  himself 
becomes  imminent." 

2  No  person  can  avail  himself  of  his  own  wi'ongful  acts,  and  hence,  when 
both  are  at  fault,  neither  can  invoke  the  aid  of  the  law  ;  it  leaves  them  as  it 
found  them,  equal,  and  without  remedy  against  themselves  or  their  own  mis- 
deeds.    (2  Parsons  on  Contracts,  5th  Ed.  1866,  p.  782. ) 

Althougli,  as  a  rule,  fraud  vitiates  all  contracts,  it  would  seem  that  a  fraud 
perpetrated  on  Sunday  does  not  have  that  effect  where  laws  for  prevention  of 
work  on  the  Lord's  day  are  in  force. 

In  Plaisted  v.  Palmer,  N.  Y.  Court  of  Appeals,  July,  1875,  "the  defendant 
sold  a  horse  to  the  ijlaintiff  on  Sunday  ;  the  plaintiff  gave  his  bank-check  for 
the  price  of  the  Itorse  on  the  same  day  ;  the  defendant  at  the  same  time  depos- 
ited a  bill  of  sale  of  the  horse  with  a  third  person,  to  be  delivered  to  the  plaintiff 
when  the  check  was  i^aid  ;  the  check  was  jiaid,  and  the  horse  and  bill  of  sale 
were  delivered,  all  on  a  secular  day,  afterward.  Held,  that  an  action  of  as- 
sumpsit to  recover  back  the  price  2")aid  for  the  horse,  on  account  of  a  deceit  prac- 
ticed in  the  sale,  would  not  lie,  because  based  upon  a  transaction  tainted  with 
illegality." 

3  Story  on  Sales,  Sec.  105.  Parsons  on  Contracts,  Vol.  2,  5th  Ed.  18Gfi,  stops  a 
little  short  of  the  rule  as  stated  in  the  text,  and  says  that  "the  doctrine  is  not 
fully  settled  ;  that  it  would  often  be  very  harsh  and  apparently  inijust  to  inflict 
all  the  consequences  of  fraud  on  one  who  had  made  a  material  misstatement  iu 
ignorance  only  because  of  his  q-wti  error"  ;  but  it  would  seem  still  more  luijust, 
says  the  same  wi-iter,  to  iiermit  all  the  consequences  of  this  false  statement  to 
fall  and  rest  on  him  whose  only  fault  was  in  believing  that  one  told  tlie  truth 
who  was  in  fact  stating  that  which  was  false.  Possibly  there  sliould  be  a  dis- 
tinction in  law,  as  there  is  in  morals,  between  him  who  is  mistak<m  and  the  per- 
son who  tells  a  willful  untrutli,  but  the  effect  is  the  same  ;  one  party  is  deceived 
to  his  injury,  and  the  simjile  cjuestion  is  which  sliall  suffer. 


§  111  SALE    OF  AXIMALS.  136 

favor  of  negotiable  paper,  such  as  promissory  notes.  The 
bona  fide  hokler  who  has  bought  the  note  before  maturity  for 
a  yakiable  consideration,  and  without  notice  of  fraud,  is  pro- 
tected where,  by  negligence  on  his  part,  the  maker  of  the  note 
has  enabled  a  fraud  to  be  perpetrated  u^^on  him  in  the  making  of 
the  note.  The  most  noticeable  instances  in  point  have  occurred 
within  the  past  few  years  in  the  matter  of  the  so-called 
'•  Hayfork  Commercial  Paper,"  in  which  adroit  knaves  have 
imposed  upon  unsuspecting  farmers  by  proposing  an  arrange- 
ment, obviously  beneficial  to  the  victim,  to  accept  an  agency 
for  the  sale  of  agricultural  implements ;  upon  the  proposal  being 
accepted,  the  new  agent  signs,  as  he  supposes,  a  receipt  for  the 
merchandise ;  this  last  is  so  worded,  and  the  spaces  between 
words  so  arranged,  that  by  tearing  off  a  part  of  the  paper  the 
remainder  is  a  perfect  negotiable  promissory  note,  and  the  note 
being  sold,  the  holder  brings  suit  on  it.  The  maker,  in  defense, 
meets  at  the  outset  with  a  serious  difficulty  in  the  legal  pre- 
sumption that  the  holder  has  taken  it  before  maturity  inno- 
cently and  for  value,^  and  it  is  almost  impossible,  from  the 
nature  of  things,  to  avoid  this  presumption.  These  notes  were 
at  first  held  to  be  void,  on  the  general  proposition  that  such  a 
trick  as  the  one  indicated  vitiates  the  contract ;  that  no  note 
ever  had  been  signed,  and  that  the  whole  matter  was  a  fraud. 
But  the  later  decisions  and  the  best  law  writers  hold  otherwise ; 
that  there  was  a  note ;  that  some  contract  was  intended  to  be 
made,  and  the  carelessness  of  the  farmer  enabled  the  scamp  to 
perpetrate  the  fraud,  and  that  the  peculiar  hardship  of  the 
cases  did  not  justify  departure  from  well-established  rules. 
Between  the  parties,  however,  the  trick  would  destroy  the  con- 
tract, and  the  parties  would  be  restored  to  their  relative  posi- 
tions before  making  the  arrangement.  Upon  the  same  general 
principle,  in  the  matter  of  purchase  and  sale  of  projjerty,  if  the 
purchaser  make  false  representations  as  to  his  means  of  pay- 

1  Pasley  v.  Freeman,  3  T.  R.  51.  If  one  injures  anotlier  by  statements  which 
he  knows  to  he  false,  lie  will  be  held  answerable,  although  there  Avas  no  evi- 
dence of  gain  to  himself,  or  of  any  interest  in  the  question,  or  of  malice,  or 
intended  mischief.  (Foster  v.  Charles,  G  Bing.  390  :  Corbett  v.  Brown,  8  Bing. 
83;  White  v.  Wlieaton,  3  Selden,  352.) 


137  SALE    OF  ANIMALS.  §  112 

ment,  he  has  no  right  to  the  property  bought,  and  the  seller 
will  be  justiiied  in  retaking  the  property,  provided  he  can  do  so 
without  force. 

§  112.  Concealment  is  not  necessarily  fraudulent,  un- 
less there  exists  between  the  parties  such  a  relation  as  to 
impose  an  obligation  to  state  every  material  fact  or  circum- 
stance by  reason  of  the  existence  of  some  special  trust  reposed 
in  the  party  who  conceals  the  fact  by  him  with  whom  he  is 
dealing.^  But  the  vendor  must  do  nothing  to  prevent  the  buyer 
from  ascertaining  the  facts ;  for  if  by  any  means  he  prevents 
the  purchaser  from  coming  to  a  knowledge  of  the  truth,  and 
especially  if  he  make  any  false  suggestions,  it  is  at  the  risk  of 
vitiating  the  sale.^ 

1  Story  on  Sales,  17-4;  Haycraft  v.  Creary,  2  East,  92;  Gallagher  v.  Brunei,  G 
Cow.  346.  "It  will  be  presumed,  in  the  absence  of  proof  to  the  contrary,  that 
the  holder  of  negotiable  paper  received  it  for  value,  before  maturity,  and  in  the 
regular  course  of  business."     (Shirts  v.  Overjohn,  Sui).  Ct.  Mo.  May  Term,  1875.) 

2  Story  on  Sales,  17G;  Mathews  v.  Bliss,  22  Pick.  53;  Prescott  v.  Wright,  4 
Gray,  461;  2  Cent.  L.  J.  423,  to  same  point. 

In  Sims  v.  Bice,  67  111.  88,  a  farmer,  who  could  not  read  readily,  while  plow- 
ing in  his  iield  with  a  pair  of  yoimg  mules,  was  accosted  by  a  person  who  repre- 
sented himself  to  be  an  agent  of  a  corporation  engaged  in  the  manufacture  of 
agricultural  implements ;  the  pretended  agent  induced  the  farmer  to  become  a 
sub-agent,  and  act  for  the  company  in  the  sale  of  the  machines.  A  paper  was 
presented  to  the  farmer  to  sign,  which  was  to  be  an  acceptance  by  him  of  the 
employment.  By  a  trick,  this  paper,  whicli  he  signed,  could  be  turned  into  a 
promissory  note  by  tearing  off  a  part  of  the  sheet  on  which  it  was  printed.  The 
trick  was  perpetrated,  and  the  jiromissory  note  so  obtained  was  sold,  and,  by  the 
innocent  jiurchaser,  sued. 

The  defense  developed  the  facts  above  stated.  Held,  "where  a  party  is  in- 
duced to  sign  a  promissory  note,  itnder  the  representation  and  belief  that  the 
same  is  an  agreement  appointing  him  agent  for  the  sale  of  machines,  and  a 
statement  of  liis  ownership  of  property,  and  he  cannot  read  writing  readily,  as 
between  the  parties  it  will  be  A'oid,  as  liaving  been  executed  through  fraud  and 
circumvention."  "That  where  a  person  executes  a  paper  lie  must  be  diligent,  and 
use  all  reasonable  means  to  prevent  a  fraud  being  i^racticed  upon  him,  or  lie  will 
be  liable  to  an  innocent  purchaser  before  maturity.  He  is  not  reqtiired  to  use 
CA-ery  precaution,  but  only  such  as  would  be  expected  from  men  of  ordinary 
prudence.  The  assignee,  equally  witli  the  maker  of  a  note,  is  bound  to  use 
proper  diligence,  and  when  agents  for  the  sale  of  patent  rights,  and  such  mat- 
ters, who  are  strangers,  offer  to  sell  promissory  notes,  taken  by  them,  a  i^rudent 
man  would  have  his  sus2)icions  roused,  and  in  such  case  the  purchaser  ought  to 
protect  himself  by  inquiring  of  tlie  apparent  maker." 

Shirts  I'.  Overjohn,  Sup.  Ct.  Mo.  May  Term,  1875.  Defendant  testified  as  fol- 
lows :  "  At  the  time  I  signed  the  note  sued  ttpon,  the  payee  wanted  me  to  act  as 
an  agent  for  the  sale  of  plows.  At  the  time  I  signed  the  note  sued  on  I  sup- 
posed I  was  giving  a  receipt  for  the  iilows.    There  was  no  consideration  of  any 


§  113  SALE   or  ANIMALS.  138 

§  113.  Statute  of  Frauds  in  sales  of  animals. — The  Stat- 
ute of  Frauds  has,  for  about  two  centuries,  been  the  law  of 
England,  and  is,  with  slight  variations,  that  of  each  of  the 
United  States.  Sec.  17  provides  that  no  contract  for  the  sale 
of  any  goods,  wares,  or  merchandise,  for  a  price  of  <£10,  or 
upwards,  shall  be  valid  unless  some  note  or  memorandum  in 
writing  be  made  and  signed  by  the  party  to  be  charged  thereby, 
or  some  earnest  be  given  to  bind  the  bargain,  or  part  payment 
be  made,  or  the  buyer  actually  accept  and  receive  part  of  the 
goods. 

Therefore,  a  valid  sale  of  animals,  or  any  other  chattel,  can 
only  be  made,  (the  price  of  the  same  being  equal  to  or  more 
than  the  amount  limited  by  the  act)  when :  1st.  The  buyer 
either  actually  receives  or  accepts  the  animals,  or  some  portion 
of  the  lot  sold ;  or  2d.  He  makes  a  jiart  payment  or  gives  an 
earnest  to  bind  the  trade ;  or  3d.  The  party  to  be  charged,  or 
his  agent,  make  and  sign  some  memorandum  in  writing  of  the 
bargain.^ 

kind  for  the  note,  which  I  thought  and  understood  to  be  a  receipt  only ;  as  a 
matter  of  fact,  it  was  sucli  a  receipt,  but  was  so  adroitly  jirinted  that,  by  hav- 
ing the  place  of  signatiire  arranged  for  the  middle  of  the  jiiece  of  paper,  and  a 
scarcely  observable  sjiace  between  the  words,  about  two-thirds  across  the  sheet, 
the  right-hand  end,  say  one-third  of  the  piece,  could  be  torn  off,  and  leave  a 
complete  promissory  note." 

The  trick  was  sustained  by  the  Coiu't,  and  judgment  given  on  the  note  in  the 
hands  of  the  assignee,  on  the  ground  that  the  negligence  of  the  maker  of  the 
note,  in  not  observing  the  trick,  enabled  a  trickster  to  deceive  an  innocent  party; 
that  it  having  appeared  that  the  party  sought  to  be  charged  intended  to  bind 
himself  by  some  obligation  in  writing,  and  voluntarily  signed  his  name  to  what 
he  supposed  to  be  the  obligation  he  intended  to  execute,  having  full  and  unre- 
stricted means  of  ascertaining  for  himself  the  true  character  of  such  instrument, 
but  neglecting  to  avail  himself  of  such  means  of  information,  and  relying  on 
the  representations  of  another  as  to  the  contents  of  the  instrument,  signed  and 
delivered  a  iiromissory  note,  instead  of  the  instrument  he  intended  to  sign,  he 
cannot  be  heard  to  imjieach  its  validity  in  the  hands  of  a  bona  lide  holder.  (2d 
Cent.  L.  J.  423. ) 

Citizens'  National  Bank  v.  Smith,  55  X.  H.  593.  The  defendant  was  induced  to 
sign  liis  name,  as  maker,  to  a  negotiable  promissory  note,  by  false  and  fraudu- 
lent representations  that  it  was  a  contract  of  an  entirely  different  character, 
wliereby  he  would  incur  no  iiecuniary  liability ;  but  it  appeared  further,  tliat  it 
was  a  negligent  act  on  his  part  to  sign  the  note  without  ascertaining  whether  it 
was  what  the  payee  repres(!nted,  or  something  else.  Held,  that  tlie  defendant 
was  precluded  by  his  negligence  from  setting  up  the  fraud,  against  a  bona  fide 
holder  of  the;  note  who  had  purchased  it  for  value  before  due.  (3d  Cent.  L.  J. 
Ifi3,  March  10th,  187G. ) 

1  111  the  several  States,  the  amount,  which  in  the  original  statute  is  put  at  £10, 
is  varied.   This  amount  is,  in  Alabama  and  California,  .1?200;  Colorado,  Georgia, 


139  SALE   OF  ANIMALS.  §  114 

As  to  what  should  constitute  an  acceptance  of  the  property 
sold  will  depend  somewhat  upon  the  circumstances,  but  it  is  a 
fact  to  be  proved  like  any  other,  and  its  proof  is  subject  to  the 
ordinary  rules  of  evidence.  An  actual  delivery  needs  no  defi- 
nition ;  a  constructive  acceptance  is  a  fair  matter  of  inference 
from  the  conduct  of  the  buyer.  As  for  instance :  A  man 
verbally  agreed  to  buy  some  sheep  which  he  had  selected  from 
plaintiff's  flock,  and  directed  them  to  be  sent  to  his  field,  which 
was  done  ;  he  counted  them,  and  said  "  It  is  all  right "  ;  af  ter- 
Avard  he  tried  to  repudiate  the  bargain,  but  could  not.^ 

§  114.  Mistake  as  to  a  material  fact  will  vitiate  a  sale. 
No  contract  can  be  said  to  have  been  reciprocally  binding,  where 
it  is  founded  upon  an  injurious  mistake  of  facts,  a  proper  under- 
standing of  which  was  essential  to  determine  as  to  the  propriety 
of  making  the  agreement ;  and  it  appears  not  to  make  any  dif- 
ference whether  or  not  the  person  might,  with  more  or  less  ease, 
have  informed  himself  as  to  what  the  facts  were ;  he  must  not 
only  have  the  means  of  acquiring  the  knowledge,  but  he  must 
have  availed  himself  of  them.^ 

Indiana,  Massachusetts,  Michigan,  ]Minnesota,  Oregon,  South  Carolina,  "Wiscon- 
sin, and  Maryland,  $50  ;  Connecticut,  $35  ;  New  Hampshire,  §33  ;  Arkansas, 
Maine,  ISIissouri,  and  ISTew  Jersey,  §30  ;  Delaware,  825  ;  in  Florida  and  Iowa,  no 
amount  is  specified  ;  all  sales  for  whatever  amount  are  within  the  statute  rule, 
and  must  be  evidenced  by  acceptance,  earnest,  or  part  payment. 

In  Illinois,  Kansas,  Kentucky,  Mississippi,  Noiiih  Carolina,  Nevada,  Ohio, 
Pennsylvania,  Ehode  Island,  Tennessee,  Texas,  and  Virginia,  this  Sec.  17  has 
not,  in  terms,  been  adoiited,  but  similar  Statutes  of  Frauds  are  there  in  force. 
So,  also,  in  California.     (Mayer  v.  Childs,  47  Cal.  142.) 

1  Saunders  v.  Topp,  4.  Ex.  390. 

"Where  a  i:)erson  had  made  to  another  an  offer  of  a  horse  at  a  certain  price,  and 
he  to  whom  this  offer  was  made  offered  to  sell  the  animal  to  a  third  party  at  an 
advance,  and  took  him  to  where  the  horse  was  for  him  to  decide,  this  was  held 
by  the  Court  to  be  an  acceptance,  and  that  the  sale  was  thereby  completed  ; 
although  the  horse  was  not  removed  from  the  original  A'endor's  stable,  and  the 
party  did  not  succeed  in  selling  him  at  the  advance  ;  by  exhibiting  and  treating 
the  in-oiierty  as  his,  he  indicated  his  acceptance  of  the  property.  (Blenkiusopp 
V.  Clayton,  7  Taiiut.  507.) 

2  Bell  V.  Gardiner,  4  Man.  &  Graug.  11 ;  Lucas  v.  "U^orswick,  1  Mood.  &  Bob. 
293 ;  Kelly  v.  Solari,  9  Mees.  &  "V\'.  54.  In  this  case,  the  chief  baron.  Lord  Ab- 
inger,  in  deciding  the  cause,  held  that  notwithstanding  it  appeared  that  the 
party  to  be  charged  had  once  knew  the  fact,  yet  if  he  liad  forgotten  it  and  acted 
upon  a  belief,  honest  at  the  time,  in  a  different  condition  of  things  which  was 
not  true,  he  might  avail  himself  of  his  mistake,  although  he  had  once  known 
what  the  truth  was.    It  was  further  held  that  the  knowledge  of  the  facts  which 


§  114  SALE   or  ANIMALS.  140 

A  mistake  may  be  as  to  the  character  or  nature  of  the  prop- 
erty sold,  the  buyer  supposing  he  bought  one  thing  when  in 
trutli  it  was  another ;  so  if  a  mistake  arise  as  to  the  existence 
of  tlie  animal  sold,  as  if  a  horse  were  sold,  he  being  at  the  time 
dead,  though  neither  party  knew  that  fact ;  and  so  if  one  party 
understands  the  sale  as  absolute,  and  the  other  conditional.  In 
all  such  cases  there  is  no  perfect  assent,  and  hence  no  sale.^ 

"disentitles  the  party  from  recovering,  must  mean  a  knowledge  existing  in  the 
mind  at  the  time  of  payment." 

In  Paxtherford  v.  Mclnn,  24  Ala.  750,  it  was  held  that  in  a  contract  where 
money  had  been  paid  over  under  a  mistake  as  to  the  controlling  facts  of  the  con- 
tract, the  agreement  could  he  ignored  and  the  money  paid  recovered  withoiit  a 
demand  being  made  before  suit  was  brought. 

To  the  same  point,  Guild  v.  Baldridge,  2  Swan,  (Tenn.)  295;  Boyer  v.  Peck,  2 
Denio,  107;  1  Story's  Eq.  Jr.  Sec.  140;  DeWitt  v.  Duncan,  4G  Cal.  342. 

"There  may,  however,  be  cases  in  which,  by  proper  investigation,  the  person 
making  the  mistake  might  have  informed  himself  concerning  the  actual  state  of 
the  facts  material  to  his  contract,  but  he  declines  or  refuses  to  do  so,  and  volun- 
tarily assumes  the  risk  of  his  ignorance  and  negligence,  in  which  he  would  be 
bound  to  abide  the  consequences  of  his  mistake.  In  these  cases  the  maxim  ap- 
l^lies:  Lex  vigilantihus,  non  dormientibus  subvcnit."     (Story  on  Sales,  Sec.  146.) 

But  if  a  party  make  a  mistake  in  a  matter  wherein  it  is  his  duty  to  be  informed, 
any  loss  which  may  result  from  his  error  he  should  bear.  (Taylor  v.  Fleets,  4 
Barb.  95;  Gloucester  Bank  *'.  Salem  Bank,  17  Mass.  oo.) 

1  Allen  V.  Hammond,  11  Peters.  G3-71.  In  this  case,  the  rule  is  stated  to  be 
that  given  in  Hitchcock  v.  Giddings,  Daniels'  Equity  Beiiorts,  ji.  1,  A-iz. :  "A 
vendor  is  bound  to  show  that  he  actually  has  that  which  he  professes  to  sell. 
And  even  though  the  subject  of  the  contract  be  known  to  both  iiarties  to  be  li- 
able to  a  contingency,  which  may  destroy''  it  immediately,  yet,  if  the  contingency 
has  already  haiipened,  it  will  be  void."  To  illustrate  this  proposition,  the 
learned  jixdge,  (McLean)  in  giving  the  decision  of  the  Court,  (11  Peters,  p.  71, 
Allen  V.  Hammond)  says:  "If  a  horse  be  sold  which  is  dead,  though  believed 
to  be  living  by  both  parties,  can  the  inirchaser  be  compelled  to  pay  the  consid- 
eration ?"  Clearly  not  intending  to  ask  as  though  there  could  be  a  doubt,  but 
only  by  way  of  elucidating  the  proposition  by  stating  it  in  a  form  not  ojien  to 
doubt. 

And  so  where  the  extent  or  quantity  of  property  sold  is  a  matter  on  which  it 
fairly  is  shown  that  there  has  been  mistake  or  misunderstanding.  As  where 
certain  articles  are,  by  the  purchaser,  supposed  to  be  included  in  a  sale,  but  the 
vendor  neither  intends  or  sujiposes  anything  of  the  kind:  as,  for  example,  a 
farm  is  sold  and  the  buyer  really  believes  that  he  is  also,  under  the  sale,  to  have 
the  animals  on  the  farm,  but  misunderstands  the  bargain  and  does  not  get  them. 
"In  such  cases,  since  the  mistake  immediately  touches  the  consideration,  it 
will  afford  sufficient  ground  for  annulling  the  contract  if  the  mistake  be  other 
than  trifling  and  insignificant."     (Story  on  Sales,  Sec.  151.) 

In  his  work  on  equity  jurisprudence.  Sec  144,  the  same  distinguished  writer 
says :  "  It  is  impossible  to  say  that  one  shall  be  forced  to  give  that  price  for  part 
only  which  he  intended  to  give  for  the  whole ;  or  that  the  other  shall  be  obliged 
to  sell  the  whole  for  what  he  intended  to  be  the  price  of  a  part  only." 


141  SALE    OF  AXIMALS.  §  115 

§  115.  "  Let  the  buyer  beware." — Notwithstanding  all  the 
protections  against  f  rand  and  mistake  which  have  been  considered, 
caveat  emptor  is  emphatically  the  maxim  of  all  others  most  to 
be  regarded  in  the  sale  of  animals.  The  purchaser,  as  a  rule, 
and  in  the  absence  of  express  or  implied  warranty,  buys  at  his 
own  risk,  and  the  seller  is  only  bound  to  show  that  the  animal  is 
of  the  species  which  it  purports  to  be — nothing  more  ;  and  if  the 
purchaser  makes  no  inquiry  as  to  its  value,  character,  condition, 
soundness,  or  quality,  as  the  case  may  be,  and  it  turns  out  to  be 
less  perfect  or  valuable  than  the  purchaser  supposed,  he  must 
bear  the  disappointment. 

This  maxim  of  caveat  emptor  applies  to  every  sale  of  chat- 
tels, unless  there  has  been :  1st.  An  express  warranty ;  2d.  An 
implied  warranty ;  or  3d.  Fraud,  or  false  representations  made 
by  the  seller  to  induce  the  purchaser  to  buy.^ 

1  "The  first  and  general  rule  relating  to  warranty  in  cases  of  sales  is  that  the 
purchaser  buys  at  his  own  risk;  caveat  emptor,  unless  the  seller  give  an  express 
warranty,  or  the  law  implies  a  warranty  from  the  circumstances  of  the  case  or 
the  nature  of  the  thing  sold;  or  unless  the  seller  be  guUty  of  a  fraudulent  repre- 
sentation or  concealment,  in  respect  to  a  material  inducement  to  the  sale." 
(Story  on  Sales,  Sec.  394.) 

The  rule,  caveat  ernptor,  applies  to  the  sale  of  a  "  cribber,  where  an  examina- 
tion of  the  horse's  moiith  by  the  purchaser  would  have  disclosed  the  defect." 
(Dean  v.  Morey,  33  Iowa,  120. ) 

The  doctrine  of  the  common  law  renders  the  vendor  liable  to  the  purchaser 
when  he  practices  any  artifices  to  conceal  defects ;  or  makes  any  representations 
to  throw  the  buyer  off  his  guard;  or  when  any  special  trust  or  confidence  is  re- 
posed in  tlie  vendor;  or  where  there  is  a  latent  defect  known  to  the  seller,  which 
ordinary  and  reasonable  caution  upon  the  j^art  of  the  buyer  will  not  be  liable 
to  disclose.  But  if  the  defects  in  the  animal  be  open  equally  to  the  observation 
of  both  parties,  the  law  does  not  require  the  vendor  to  aid  and  assist  the  observa- 
tion of  the  \-endee.    (2  Kent's  Com.  482-90;  "Weimeru.  Clement,  37Penn.  St.  147.) 

A  vendor  of  goods  is  not  answerable  for  their  quality,  unless  he  has  exjiressly 
warranted  them,  or  has  been  guUty  of  fraudulent  representation  or  affirmation 
of  a  quality  known  to  be  false.  "The  maxim  of  the  civil  law  that,  'a  sound 
article  is  warranted  by  a  sound  price,'  has  never  been  adopted  in  Pennsylvania." 
(Jackson  v.  Wetherell,  7  S.  &  Pi..  422;  McFarland  v.  Memmer,  9  Watts,  65;  Day 
V.  Pool,  52  N.  Y.  41G;  Hawkins  v.  Pemberton,  51  X.  Y.  198.) 

"The  common-law  doctrine,  caveat  emptor,  has  received  very  important  modi- 
fication in  the  course  of  modern  adjudications."  (Albany  Law  Journal,  Janu- 
ary IGth,  1875.) 


§§  116-17         WAEEAXTY    ON   SALE    OF  ANI3IALS.  142 


CHAPTER  IX. 

WARRANTY  ON  SALE  OF  ANT3LiLS. 

§  116.  Contract  of  warranty  in  sale  of  animals. 

§  117.  "Warranty  of  title  by  sale  of  animals. 

§  118.  Warranty  may  be  made  any  time  before  sale. 

§  119.  ExiDress  warranty. 

§  120.  Warranty  to  be  made  good  in  letter  and  spirit. 

§  121.  Visible  defects  not  covered  by  warranty. 

§  122.  Words  of  description,  when  a  warranty. 

§  123.  Expression  of  opinion,  when  a  warranty. 

§  124.  Implied  warranty. 

§  125.  Warranty  of  merchantable  character  of  article  sold. 

§  126.  Warranty  against  latent  defects. 

§  127.  Warranty  in  sales  by  samjile  or  specimen. 

§  128.  Implied  warranty  in  cases  of  fraud. 

§  129.  Measure  of  damages  on  breach  of  wai-ranty. 

§  116.  A  contract  of  warranty  is  distinct  from  that  of 
sale,  although,  naturally,  it  is  often  contemporaneous  with  it, 
and  each  contract  or  promise  is  the  consideration  for  the  other. 

The  contract  of  sale  being  consummated,  the  next  question  is 
as  to  whether  the  animals  are  of  the  quality  and  nature  which 
the  purchaser  might  properly  believe  he  had  bought ;  and 
should  it  occur  that  they  are  not,  then  whether  he  is  entitled  to 
rescind  the  contract,  and  recover  the  price  which  he  has  paid. 
Having  already  considered  all  matters  of  fraud,  mistake,  etc., 
which  would  vitiate  the  contract  ah  initio,  we  are  led  directly 
to  consider  whether  the  seller  has  made  a  second  contract,  by 
which  he  warrants  the  property  to  be  of  a  specified  character  or 
value. 

§  117.  By  the  sale  of  an  animal  a  warranty  of  title  is 
made. — The  first  and  general  rule,  as  avc  have  seen,  i.s  that  the 
purchaser  buys  at  his  own  risk,  caveat  em'ptor,  but  this  must  not 
be  understood  as  applying  to  the  title  of  the  animals.^ 

1  Chambers  v.  Griffith,  1  Esp.  150;  Rogers  t'.  Hanson,  35  Iowa,  283. 


143  WARRANTY   OX   SALE    OF  ANIMALS.  §  118 

If  the  vendor  is  not  the  owner  he  cannot  sell,  and  hence,  there 
having  been  no  sale,  the  warranty  results  directly  from  the  right 
to  recover  the  price  paid.  And  if  the  vendor  have  a  number  of 
animals  in  his  possession,  and  he  sell  them  in  a  lot,  but  only 
owns  a  part,  the  vendee  might,  ordinarily,  retain  the  portion 
which  the  seller  had  a  title  to,  and  enforce  an  abatement  of  the 
price,  or  if  paid,  restitution  of  a  part  of  it  proportionately ;  and 
if  the  contract  of  sale  is  separable,  the  purchaser  would  be 
obliged  to  keep  that  part  of  the  property  sold  to  which  the 
vendor  had  title,  and  pay  the  stipulated  price.  As,  where  a 
person  sold  a  horse  and  cow  together,  the  price  being,  for  the 
cow  forty  dollars,  and  for  the  horse  one  hundred,  and  the  title  of 
the  vendor  failed  as  to  the  horse,  the  buyer  was  obliged  to  keep 
and  pay  for  the  cow,  which  the  vendor  had  a  right  to  sell,  and 
to  which  he  could  give  title.  But  if  the  contract  of  sale  be 
entire,  that  is,  the  price  one  whole  sum,  not  divisible  into  lesser 
ones,  which  would  severally  be  the  stipulated  price  for  the  ani- 
mals which  did  belong  to  the  seller,  then  the  whole  sale  would 
fall.i 

§  118.  A  -warranty  may  be  made  at  any  time  before 
the  trade   is  closed ;    but,  in  order  that  the   contract  of  war- 

ilbid;  EoffeytJ.  Shallcross,  4  Mad.  Ch.  227;  Dalby  u.  PuUen,  3  Sim.  29;  Casa- 
major  v.  Strode,  1  Coop.  Sel.  Cas.  510;  James  v.  Shore,  1  Stark.  426;  Roots  v. 
Dormer,  4  Barn.  &  Add.  77;  Judson  v.  Wass,  11  Johns.  525.  A  contract  to  de- 
liver five  Imndred  gunny-bags,  more  or  less,  is  substantially  complied  with  by  a 
delivery  of  four  hundred  and  seventy-five  bags,  and  the  vendor  may  recover  for 
those  actually  delivered.    (Cabot  v.  Winsor,  1  Allen,  546.) 

Casamajor  v.  Strode,  1  Coop.  Sel.  Cas.  510;  Eoifey  v.  Shallcross,  4  Mad.  Ch. 
227;  2  Kent's  Com.  470.  Under  a  contract  for  the  sale  and  delivery  of  fat  hogs 
of  a  certain  character  or  weight,  at  a  specified  time  and  place,  it  is  the  duty  of 
the  seller  to  have  them  there  as  required,  ready  for  delivery;  and  if,  as  first 
offered,  the  hogs  do  not  comj^ly  with  the  contract,  the  vendee  is  under  no  obli- 
gation to  comply  with  a  request  of  the  vendor  that  he  go  into  adjoining  lots, 
owned  by  other  jiarties,  and  with  whom  the  seller  has  naade  arrangements  to 
that  effect,  and  select  therefrom  enough  hogs  to  make  the  lot  comply  with  the 
contract.  (Cash  v.  Hinkle,  36  Iowa,  623.)  If  the  hogs  did  not,  as  at  first 
offered,  comply  with  the  contract,  it  became  the  duty  of  the  vendor  to  make 
them  comi^ly,  else  the  vendee  was  not  bound  to  accept.  ("Williams  v.  Triplett,  3 
Iowa,  518. ) 

It  was  the  duty  of  the  vendee  to  have  the  hogs  at  the  time  and  place  of  de- 
livery, set  apart  and  designated  for  that  purpose,  unless  excused  by  a  refusal  to 
receive.  (Cash  v.  Hinkle,  36  Iowa,  627;  AYilliams  i'.  Triplett,  3  Id.  518;  Gross  v. 
Kierski,  41  Cal.  Ill;  Spofford  v.  Stutsman,  9  Id.  128;  Grames  v.  Manning,  2  G. 
Gr.  251.) 

But  see  dissenting  opinion  in  Cash  v.  Hinkle,  36  Iowa,  628. 


§  118  AVARRAXTY    OX    SALE    OF   AXIMALS.  144 

ranty  should  form  part  of  the  agreement,  it  must  be  made  be- 
fore tlie  contract  of  sale  is  completed,  or,  at  the  latest,  at  the 
close  of  the  transaction ;  and,  if  left  until  the  last,  it  must 
plainly  appear  to  have  entered  into  the  bargain,  and  been  an 
inducement  to  it.^ 

A  separate  and  distinct  contract  of  warranty,  upon  other  con- 
sideration than  that  of  the  sale,  may,  however,  be  made  after 
the  sale  is  consummated ;  but  it  must  stand  entirely  upon  its 
own  merits,  and  be  founded  upon  a  valid,  sufficient  considera- 
tion.2  The  warranty  need  not  be  made  personally  by  the  vendor ; 
his  agent,  duly  authorized,  may  bind  him  thereto.  A  careful 
examination  should  be  made  as  to  Avhat  power,  in  that  behalf, 
the  agent  has  from  his  principal,  there  being  here  to  be  ob- 
served a  distinction,  which  frequently  becomes  important,  be- 
tween tlie  powers  of  a  general  and  those  of  a  special  agent. 

A  general  agent  is  one  vvdio  has  power,  for  his  principal,  to 
do  all  acts  connected  with  the  line  of  business,  occupation, 
trade,  or  transaction  to  which  the  agency  relates.  A  special 
agent  has  no  power  except  to  do  a  certain  specified  act.  He 
can  only  bind  his  principal  to  the  extent  of  this  special  power 
conferred,  and,  if  he  exceeds  his  special  instructions,  the  prin- 
cipal is  not  bound ;  but  a  general  agent  may  bind  his  principal 
by  all  acts  done  within  the  general  scope  of  his  agency,  and 
even  where  he  exceeds  or  violates  his  instructions  from  the  prin- 
cipal.^ 

1  Parker  ?;.  Abbott,  33  Iowa,  180.  This  was  an  action  upon  an  alleged  war- 
ranty that  a  cow  was  "  coming  in  "  at  the  next  ensuing  spring.  The  seller  knew 
that  she  was  not  with  calf,  but  stated  that  she  was  "  coming  in  in  the  spring." 
Held,  that  any  distinct  affirmation  of  quality  made  l)y  tlie  seller  during  the  ne- 
gotiation, which  was  relied  upon  by  the  buyer  and  was  operative  in  causing  the 
sale,  amounts  to  a  warranty. 

2  Vincent  v.  Leland,  100  ISIass.  432  ;  Budd  v.  Fairmauer,  8  Bing.  48  ;  Leddard 
V.  Kain,  2  Bing.  183  ;  Tuttle  v.  Brown,  4  Gray,  457  ;  Bloss  v.  Kittredge,  5  Vt.  28  ; 
Reed  v.  Wood,  9  Vt.  285  ;  Hoggins  v.  Plimpton,  11  Pick.  97  ;  Burton  v.  Young,  5 
Harrington,  223  ;  Conger  v.  Chamberlain,  14  Wis.  258  ;  Burton  v.  Young,  5  Har- 
rington, 233  ;  Summers  v.  Vaughn,  35  Ind.  32.3.  There  is  no  particular  phraseol- 
ogy necessary  to  constitute  a  warranty.  The  assertion  or  affirmation  of  a  vendor 
concerning  the  article  sold  must  be  positive  and  unequivocal.  It  must  be  n  rep- 
resentation which  the  vendee  relies  upon,  and  which  is  understood  by  the  par- 
ties as  an  absolute  assertion,  and  not  the  expression  of  an  opinion.  (Hawkins 
'/;.  Pemberton,  51  N.  Y.  198  ;  Wadleigh  v.  Davis,  G3  Barb.  500. ) 

•^  "It  is  not  necessary,  in  order  to  render  the  vendor  liable,  that  the  warranty 


145  WAERANTY   OX    SALE    OF   ANIMALS.         §§  119-20 

§  119.  Express  warranty  Is  a  clear,  distinct  contract,  must 
be  sustained  by  proper  consideration,  and  is  governed  by  the 
ordinary  rules  applicable  to  contracts. 

The  warranty  may  be  made  in  any  manner  which  sufficiently 
indicates  that  the  minds  of  the  parties  have  met  and  agreed, 
whether  that  fact  is  manifested  by  affirmation,  signs,  or  writing. 
It  may  be  entire,  covering  every  possible  contingency,  or  special, 
and  limited  to  one  ;  it  is  the  creature  of  the  parties,  and  they 
may  mould  it  into  any  shape  that  suits  them ;  but  once  formed, 
and  assented  to,  it  becomes  a  definite  agreement,  into  which  have 
been  merged  all  the  previous  conversations,  treaties,  and  arrange- 
ments of  the  parties  in  the  premises.^ 

§  120.  The  -warranty  must  be  niade  good  to  the  spirit 
and  letter,  and,  to  hold  the  seller,  the  buyer  need  only  show 
that  the  animal  does  not  correspond  to  the  exact  terms  of  the 
warranty ;  thus,  where  a  horse  was  warranted  to  be  "  a  good 
drawer,  and  he  pulls  quietly  in  harness,"  it  was  shown  that  he 
did  not  pull  quietly  in  harness,  although  he  was  a  good  drawer. 
Held,  that  this  did  not  satisfy  the  warranty.^ 

should  proceed  from  him  personally,  but  that  he  will  be  equally  bouud  if  it  be 
made  by  any  one  held  out  by  him  to  be  his  agent  in  that  behalf."  (Story  on 
Sales,  Sec.  350.) 

The  authority  of  an  agent  is  not  necessarily  to  be  proved  by  written  instru- 
ments, but  may  be  established  by  the  habit  and  course  of  business  of  the  i^rin- 
cipal.     (Franklin  i'.  Globe  Ins.  Co.  62  Mo.  4G1. ) 

1  ""Where  there  is  a  warranty  on  sale  of  goods,  without  fraud,  a.nd  there  is  no 
stipulation  in  the  contract  that  the  goods  may  be  returned,  the  vendee  has  no 
right  to  annul  the  contract,  without  the  consent  of  the  vendor,  for  a  breach  of 
the  warranty;  biit  in  an  action  for  the  price,  the  warranty  and  breach  may  be 
given  in  evidence  in  mitigation  of  damages,  on  the  principle  of  avoiding  circuity 
of  actions."    (Doane  v.  Dunham,  65  111.  512.) 

By  water  v.  Freeman,  1  A.  &  E.  508.  So,  also,  a  warranty  may  be  a  qualified 
or  conditional  one,  involving  a  certain  course  of  conduct  by  the  vendee,  as 
where  a  horse  was  sold  with  a  warranty  against  defects  from  a  swelling  in  his 
leg,  provided  it  was  kept  cool  and  washed  with  salt  and  vinegar.  In  a  case 
involving  this  proposition,  under  the  circumstances  detailed,  it  was  held  that 
the  vendee  was  bound  to  so  treat  the  animal,  and  that  the  provisional  character 
of  the  warranty  was  enough  to  justify  and  excuse  him  from  trying  any  other 
treatment,  because  by  so  doing  he  might  lose  his  warranty.  (Smith  v.  Borst,  63 
Barb.  57.) 

Pasley  r.  Freeman,  3  T.  R.  57;  Vandewalken  r.  Osmer,  65  Barb.  556;  Hawkins 
V.  Pemberton,  51  N.  Y.  198. 

2  Colthard  v.  Puncheon,  2  Dowl.  &  By.  10;  Franklin  v.  Globe  Ins.  Co.  62  Mo. 
461. 

Farm— 10. 


§  121  WAEEAXTY    OX    SALE    OF    AXIMALS.  146 

The  warranty  may  be  limited  as  to  time ;  as  in  case  where  a 
warranty  was  to  last  until  noon  of  the  day  following  the  one  on 
which  it  was  madc.^ 

No  particular  form  is  requisite  to  constitute  a  warranty  ;  any 
affirmation,  made  by  the  vendor  at  the  time  of  the  sale,  is  a  war- 
ranty, provided  it  apj^ears  from  the  evidence  to  have  been  so 
intended  and  understood  by  the  seller  and  buyer  respectively.^ 

§  121.  Defects  ■which  are  visible  not  covered  by  -war- 
ranty.— Patent  defects  are  not  understood  to  be  included  in  a 
general  Avarranty;  such  defects  as  are  apparent  upon  a  casual 
inspection  of  the  property,  or  of  which  the  buyer  was  aware  at 
the  time  of  the  sale,  are  not  to  be  regarded  as  being  covered  by 
a  general  warranty.  In  such  a  case,  the  warranty  cannot  be  an 
inducement  to  the  sale,  as  a  reasonable  man  can  hardly  be  sup- 
posed to  part  with  his  money,  and  take  the  animal,  relying  upon 
a  warranty  which  he  knows  must  necessarily  return  to  him  his 
money  and  to  the  seller  the  animal  sold.^ 

A  party,  therefore,  who  shouhl  buy  a  horse,  knowing  it  to  be 
blind,  could  not,  on  that  account,  recover  against  the  vendor 
upon  a  general  warranty.*  But  if  the  buyer  neglected  to  ex- 
amine, Avhich  he  may  do,  relying  on  the  warranty,  or  if  he,  being 
blind,  could  not  discover  the  defect,  and  Avas  unaware  of  its  ex- 

1  By  water?'.  Ricliardson,  1  A.  &  E.  508. 

2  Pasley  v.  Freeman,  3  T.  E.  57.  It  is  not  necessary  for  the  seller  to  say  "I 
warrant."  It  is  enongli  if  he  employ  such  language  as  to  indicate  that  the  ar- 
ticle is  of  a  particular  quality,  or  is  fit  for  a  particular  iiiirjiose.  As  where  the 
seller  said,  "This  horse  is  sound,"  it  was  held  a  warrantj^  of  soundness.  (Jones 
?'.  Bright,  5  Bing.  553.) 

"  To  constitute  a  warranty  no  precise  words  are  necessary  ;  it  will  be  sufficient 
if  the  intention  clearly  appear."  (Moore  v.  McKinley,  5  Cal.  471;  Hawkins  v. 
Pemberton,  51  N.  Y.  198. ) 

3  In  Oneida  M.  S.  v.  Lawrence,  4  Cowen,  440,  Chief  Justice  Savage  says : 
"There  is  no  particular  phraseology  necessary  to  constitute  a  warranty.  The  as- 
sertion or  affirmation  of  a  vendor  concerning  the  article  sold  must  be  jiositive 
and  unequivocal.  It  must  be  a  representation  which  the  vendee  relies  on,  and 
which  is  understood  by  the  parties  as  an  absolute  assertion,  and  not  the  expres- 
sion of  an  opinion."  So  in  Sweet  v.  Bradley,  24  Barb.  549;  Wilbur  r.  Cartwright, 
44  Id.  53(} ;  ISIunson  v.  Lumbard,  18  Pick.  GG.  But  if  it  i^imtent  that  the  assertion 
is  not  true,  it  cannot  be  relied  upon.     (Story  on  Sales,  Sec.  354.) 

■*  Story  on  Sales,  Sec.  354;  Williams  v.  Ingram,  21  Tex.  300;  Hill  v.  North,  34 
Vt.  G04;  Butterlield  v.  Burroughs,  1  Salk.  211;  Dyer  v.  Hargrave,  10  Ves.  505; 
Margetson  v.  Wright,  7  Bing.  G05.  And  parol  evidence  is  admissible  to  show 
that  the  vendor  informed  the  A'endee,  at  the  time  of  the  sale,  of  the  defect 
charged.    (Schuyler  v.  Russ,  2  Caines,  202.) 


147  WARRANTY    ON   SALE   OF  ANIMALS.  §  122 

istence,  tlie  seller  would  be  held  upon  his  general  warranty,  al- 
though the  defect  was  apparent ;  ^  and  if,  to  discover  the  fault, 
any  special  skill  or  knowledge  was  i-equisite,  the  warranty  would 
hold  the  seller,  especially  if  it  be  seen  that  the  buyer  has  not 
the  special  skill  or  information,  although  to  a  person  skilled  in 
such  matters  the  defect  would  be  plainly  apparent.^ 

§  122.    "Words    of    description,    when    a    warranty. — 

Whether  mere  Avords  of  description,  contained  in  a  receipt  or 
bill  of  sale,  constitute  an  express  warranty,  is  an  open  question.^ 

1  Biitterfleld  v.  Burroughs,  1  Salk.  211;  3  Blackst.  Com.  465;  Story  on  Sales, 
Sec.  354. 

2  Pinney  v.  Andrns,  41  Vt.  041,  in  wliich,  upon  a  warranty  of  sheep,  which 
"were  affected  by  "foot-rot,"  the  Court  declares  the  general  rule  that  a  vendor 
is  exempt  from  liability  upon  a  general  warranty  of  soundness,  where  the  defect 
is  xierfectly  visible  and  obvious  to  the  unaided  senses,  but  also  holds  that  the 
rule  does  not  extend  to  an  apparent  defect,  to  understand  the  true  nature  and 
extent  of  which  requires  the  aid  of  skill,  experience,  or  judgment.  And,  under 
such  circumstances,  a  vendor  may  warrant  against  defects  which  are  patent 
and  obvious,  as  well  as  against  any  others.  (1  Parsons  on  Con.  576,  Note  h; 
Chadsey  v.  Green,  24  Conn.  5G2;  Hill  r.  North,  34  Vt.  604;  1  Smith's  Lead.  Cases, 
221.) 

3  Bxidd  V.  Fairmauer,  8  Bing.  51.  This  was  a  sale  of  a  colt ;  the  receipt  was  as 
follows:  "Received  of  A  B  £10,  for  a  gray  four-year-old  colt,  warranted  sound 
in  every  respect."  It  was  held  that,  so  far  as  regarded  the  descriiDtive  part  of 
the  receipt,  the  buyer  was  bound  to  prove  willful  misrepresentation,  or  he  could 
not  recover,  and  that  it  was  not  covered  by  the  warranty. 

The  Chief  Justice,  Tindal,  said:  "I  should  say  that,  upon  the  face  of  this 
instrument,  the  intention  of  the  parties  was  to  confine  the  warranty  to  sound- 
ness, and  that  the  preceding  statement  was  a  matter  of  description  only.  And 
the  difference  is  most  essential.  "Whatever  a  party  warrants,  he  is  boiiud  to 
make  good  to  the  letter  of  the  warranty,  whether  the  quality  warranted  be  ma- 
terial or  not ;  it  is  only  necessary  for  the  buyer  to  show  that  the  article  is  not 
according  to  the  warranty.  AYhereas,  if  an  article  be  sold  by  description  merely, 
and  the  buyer  afterward  discovers  a  latent  defect,  he  must  go  further,  and 
allege  the  scienter,  and  show  that  the  descrii^tion  was  false,  within  the  knowl- 
edge of  the  seller.  And  where  there  is  an  exp)ress  warranty  as  to  a  single  point, 
the  law  does  not,  beyond  that,  raise  an  imi^lied  warranty  that  the  commodity 
sold  shall  also  be  merchantable.  Therefore,  in  Parkinson  i\  Lee,  2  East,  313, 
upon  a  sale  of  hops  by  samjile,  with  a  warranty  that  the  bulk  of  the  commodity 
answered  the  sample,  although  a  fair  merchantable  jirice  was  given,  it  was  held 
that  the  seller  was  not  responsible  for  a  latent  defect,  iinknown  to  him,  but 
arising  from  the  fraud  of  the  grower  from  whom  he  purchased.  A  party  who 
makes  a  simple  representation  stands,  therefore,  in  a  very  different  situation 
from  one  who  gives  a  warranty.  And,  if  so,  how  can  I  say  that  this  distinction 
was  not  present  to  the  mind  of  the  defendant  in  this  case  ?  Allien  he  sells  a 
gray  four-year-old  colt,  warranted  sound,  lie  means  to  say  that  he  will  be  re- 
sponsible for  the  soundness,  but  that  the  rest  is  only  matter  of  representation, 
for  which  he  will  not  be  answerable,  unless  it  be  shoAvn  to  be  false  within  his 


§  123  WARRANTY    ON   SALE    OF  ANIMALS.  148 

If,  in  the  writing,  there  are  no  express  terms  of  warranty  but 
a  description  of  property,  Avhich  is  in  such  definitory  terms  as 
to  manifest  that  the  article  is  of  a  certain  gradcykind,  or  quality^ 
an  inference  may  result  that  such  must  be  the  property  sold. 
Whether  such  description  shall  be  regarded  as  showing  the  in- 
tention of  the  parties,  and  hence  be  a  matter  of  fact  for  the 
jury,  or  a  contract,  the  construction  of  which  is  a  legal  propo- 
sition to  be  determined  by  the  Court,  is  not  clear ;  nor  can  any 
rule,  free  from  doubt,  be  deduced  from  the  authorities,  whether 
such  descrijDtive  wprds  constitute  a  warranty  or  not,  but  possibly 
the  want  of  harmony  may  be  obviated  by  saying  that  where,  in 
the  memorandum,  there  are  words  which  amount  to  a  contract 
of  Avarranty  as  to  a  particular  quality,  such  will  constitute  an 
implied  exclusion  of  Avarranty  as  to  every  other  quality,  upon 
the  maxim,  '•^  Exprcssio  unius  est  exdusio  alterms." 

§  123.  Expression  of  opinion  by  vendor,  "when  a  war- 
ranty. —  Mere  expi'cssions  of  opinion  by  the  seller  must  not  be 
relied  upon  as  a  warranty.  The  tendency  of  all  modern  decis- 
ions is  to  enlarge  the  responsibility  of  the  seller,  and  to  give 
such  constructions  to  his  statements  and  affirmations  as  to  make 
them  warranties  wherever  they  were  so  considered  by  the  buyer^ 
or  operated  as  an  inducement  to  purchase.  The  rule  that  the 
buyer  must  beware  is  gradually  yielding  to  the  pressure  of  this 
tendency,  and  the  seller  must  now  be  upon  his  guard  that  he 
does  not,  without  intending  it,  become  bound  to  warrant  the 
character  of  the  property  by  his  eagerness  to  sell. 

For  all  this,  the  buyer  must  not  confuse  simple  commenda- 

knowledge."  "\Vhat  is  the  instalment  here?  Not  a  contract  of  sale,  but  a 
mere  receipt,  describing  an  antecedent  contract.  Are  we  to  infer,  from  the 
terms  used,  that  the  party  had  exjiressly  contracted  that  the  animal  should  be 
four  years  old  ?  The  collocation  of  the  word  loarranted  shows  that  such  was 
not  the  intention  of  Hie  parties.  Interpreting  this  instrument,  therefore,  ac- 
cording to  the  intention  of  the  parties,  I  think  it  clear  that  the  warranty  was 
confined  to  soundness." 

"  It  is  settled,  that  any  positive  affirmation  of  character,  as  well  as  of  qxiality 
or  condition,  may  be  construed  as  a  warranty.  This  doctrine  certainly  seems 
more  accordant  with  reason  than  the  ancient  doctrine.  The  question  whether  a 
warranty  can  be  implied,  in  the  al)sence  of  some  such  positive  affirmation  on 
the  part  of  the  vendor,  is  more  serious."  (Albany  Law  Journal,  January  IGth, 
1875,  p.  42.) 


149  "WAEKANTY  ON  SALE  OF  ANIMALS.        §  123 

tlon,  or  vague  assertions  of  value  by  the  buyer,  with  a  contract 
of  warranty.^ 

Boastful  talk,  by  the  seller,  is  not  unusual  in  the  sale  of  ani- 
mals, and  the  praise,  by  the  owner,  of  his  horse  or  other  live- 
stock, is  not  always  regarded  as  an  affirmation  of  an  absolute 
verity.  The  buyer  may  test  the  sincerity  of  the  seller  by  re- 
quiring him  to  make  good  his  assertions  by  a  warranty.  If  he 
fail  to  take  that  precaution,  he  should  suffer  for  his  neglect, 
and  the  seller  will  not  be  bound  by  the  loose  talk  which  may  be 
regarded  usual,  if  not  become  by  precedent  an  almost  necessary 
adjunct  to  such  sales.^ 

But  if  the  seller  make  a  statement  of  his  belief  or  opinion, 
where  he  entertains  no  such  belief  or  opinion,  and  but  expresses 
it  to  mislead  the  purchaser,  he  having  reason  to  believe  that  the 
party  would  rely  on  his  judgment,  learning,  skill,  or  special  in- 
formation in  the  premises,  a  Court  of  Equity  would  treat  such 
conduct  as  constituting  a  fraud,  and  will  set  aside  the  contract 
if  the  untrue  statements  operated  materially  to  deceive,  and  in- 
duced the  purchase  by  the  buyer.^ 

1  The  seller's  mere  commendation  of  tlie  chattels  sold — as,  in  answer  to  the 
purchaser's  inquiry  as  to  diseased  sheep,  "They  api^ear  to  be  healthy,  and  are 
doing  well" — is  not  a  warranty.  (Tewksbury  ij.  Bennet,  31  Iowa,  83.)  And  so 
held  as  to  the  words  of  an  auctioneer  :  "Here  is  a  nice  lot  of  young,  sound 
sheep."  (McGrew  v.  Forsythe,  31  Iowa,  179;  Horton  v.  Green,  G6  N.  C.  [1872] 
596.)  But  a  representation,  at  a  sale  of  a  horse,  that  the  animal  is  fourteen 
years  old,  is  a  warranty  that  he  is  no  older.  (Burge  ?'.  Stroberg,  42  Ga.  89)  Here 
a  distinct  fact  is  averred  ;  but  in  anotlier  case,  where  the  seller  of  a  horse,  at 
the  sale,  being  asked  about  his  eyes,  said,  "  They  are  as  good  as  any  horse's  eyes 
in  the  world,"  it  was  held  that  that  did  not  necessarily  constitute  a  warranty. 
(House  V.  Fort,  4  Blackf .  293. )  And  so,  also,  it  was  held,  where  the  seller  of  a 
horse  told  the  purchaser,  before  the  sale,  "that  he  was  sure  that  the  horse  was 
perfectly  safe,  kind,  and  gentle  in  harness,"  that  this  was  not  a  warranty. 

2  Story  on  Sales,  Sec.  3(i0  ;  2  Kent's  Com.  485. 

3  Story's  Equity  Jurisprudence,  Sec.  198  ;  Story  on  Sales,  lG9a.  TJiis  is,  how- 
ever, an  exception  to  the  general  rule,  that  mere  expressions  of  opinion  should 
not  constitute  warranty,  and  should,  as  such  exceptions,  be  closely  scrutinized. 

The  general  riile  is  given  by  Chancellor  Kent.  (2  Kent's  Com.  Sec.  484. )  "When 
the  means  of  information  relative  to  facts  and  circumstances  affecting  the  value 
of  the  commodity  be  equally  accessible  to  both  i^arties,  and  neither  of  them  does 
or  says  anything  tending  to  imjiose  on  the  other,  this  disclosure  of  any  superior 
knowledge  which  one  party  may  have  over  the  other,  as  to  those  facts  and  cir- 
cumstances, is  not  requisite  to  the  validity  of  a  contract.  There  is  no  breach  of 
any  implied  confidence  that  one  party  will  profit  by  his  superior  knowledge,  as 
to  facts  and  circumstances  open  to  the  observation  of  both  parties,  or  equally 
within  the  reach  of  their  ordinary  diligence  ;  because  neither  party  rej^oses  in 
any  such  confidence,  unless  it  be  specially  tendered  or  required." 


§  124  WARRANTY    ON    SALE    OF  ANIMALS.  150 

§  124.  Implied  warranties  are  such  as  the  hiw  implies  from 
the  circumstances  of  the  sale,  or  the  nature  of  the  property  sold. 
In  the  earlier  cases  much  confusion  is  apparent,  and  seeming 
contradictions  occur ;  much,  if  not  all  of  this,  arises  from  the 
manner  of  seeking  the  remedy  in  tort,  instead  of  assumpsit, 
as  is  now  done,  in  which  the  gist  of  the  action  is  the  promise 
of  the  seller,  and  not  his  fraud.^ 

The  law  now  implies  a  warranty  when  a  sale  is  made.  1st. 
That  the  seller  has  a  valid  title  ;  2di.  That  the  property  is  of  a 
merchantable  character ;  3d.  That  it  is  fit  for  the  use  for  which 
it  is  sold ;  4th.  That  it  is  free  from  faults  concealed  by  the  seller ; 
and  5th.  If  the  sale  is  by  specimen,  or  sample,  that  the  mass 
corresponds  therewith. 

Where  the  vendor  has  the  property  In  his  possession,  the  law 
implies  a  warranty  on  his  part  that  he  owns  it ;  that  if  the  vendee 
is  deprived  of  it  by  one  having  a  superior  title,  the  vendor  is 
responsible  in  damages  for  the  breach  of  such  implied  Avar- 
ranty.^ 

But  where  the  property  is  not  in  the  possession  of  him  who 
offers  to  sell  it,  there  is  no  such  implied  warranty  of  title,  and 
the  purchaser  becomes  such  at  his  own  risk.^ 

But  a  representation,  or  positive  and  iinequivocal  affirmation  by  a  seller,  as  to 
the  state  and  quality  of  a  thing  sold,  on  the  faith  of  whicli  the  buyer  makes  the 
purchase,  is  a  warranty.  (Carter  v.  Black,  40  Mo.  384.)  "An  atHrmation  made 
by  the  vendor  at  the  time  of  sale  amounts  to  an  exjiress  warranty,  if  the  facts 
alleged  or  proven  show  it  to  have  been  so  intended  and  received."  (Giffert  v. 
West,  33  Wis.  617. ) 

1  Dale's  Case,  Cro.  Eliz.  44;  Chandeler  v.  Lojius,  Cro.  Jac.  4;  Story  on  Sales, 
Sees.  3G4-5. 

2  This  was  not  originally  the  rvile  of  tlie  EnglisJi  cases;  the  older  common-law 
rule  as  to  the  title  of  chattels  was  also  caveat  emptor,  but  the  later  English 
cases  have  modified  this  rule,  and  now  the  law  in  England  is  recognized  to  be, 
as  stated  by  Mr.  Benjamin  (Benjamin  on  Sales,  4tid):  "A  sale  of  chattels  im- 
plies an  affirmation  by  the  A^endor  that  the  chattel  is  his,  and  therefore  lie 
warrants  the  title,  i;nless  it  be  shown  by  the  facts  and  circumstances  of  the 
sale  that  the  vendor  did  not  intend  to  assert  ownership,  but  only  to  transfer  such 
interest  as  he  miglit  have  in  the  chattel  sold." 

Such  is  the  rule  now,  in  both  this  and  the  mother  country.  "  The  A'endor  of 
goods,  in  i^ossession,  selling  them  as  his  own,  is  liable  to  his  vendee  uiwn  the 
imi:)lied  warranty  of  title."  (Whitney  t'.  Heywood,  G  Cush.  82;  2  Jvent's  Com. 
478;  Kew  v.  Barber,  3  Cow.  272;  1  Parsons  on  Contracts,  45(j;  Huntington  ?-.  Hall, 
3G  Maine,  501;  Bucknum  v.  Goddard,  21  Pick.  71;  Dresser  v.  Ainsworth,  !)  Barb. 
019;  Story  on  Sales,  Sec.  3G7.) 

8  McCoy  V.  Archer,  3  liarb.  323;  Edick  v.  Crim,  10  Barb.  445;  Long  r.  Higgin- 
botham,  28  Miss.  (0  Cush.)  772;  Pratt  v.  Philbrook,  33 Maine,  23. 


151  WARRANTY    ON    SALE    OF   ANIMALS.  §  125 

The  general  rule  of  warranty  by  implication,  from  the  fact  of 
the  property  being  in  the  vendor's  possession,  is  subject  to  ex- 
ceptions ;  as  where  the  seller  distinctly  disaffirms  any  such 
warranty,  as  he  may  honestly  do  when  in  doubt  as  to  whether 
the  property  (live-stock,  for  instance)  belongs  to  him ;  if  he  be 
a  pawn-broker,  or  officer  of  the  law,  or  occupy  such  a  position 
with  reference  to  the  subject  of  the  sale,  or  manifests  that  he 
makes  no  pretense  to  be  the  owner,  or  to  assume  any  responsi- 
bility. 

Thus,  a  sheriff  does  not  warrant  title  after  he  has  paid  over 
the  money  resulting  from  the  sale ;  neither  does  an  administrator, 
executor,  or  o'ther  trustee,  after  the  purchase-money  has  passed 
out  of  their  hands.^ 

§  125.  Warranty  that  the  property  sold  is  of  a  mer- 
chantable character,  and  reasonably  fit  for  the  use  for  which 
it  is  sold,  is  an  implied  contract,  where,  from  the  circumstances, 
the  buyer  has  no  opportunity  to  inspect  or  fairly  to  judge  of  its 
quality,  or  where  the  vendor,  being  made  a-\vare  of  the  special 
need  of  the  buyer,  offers  to  meet  that  necessity  with  such  prop- 
erty as  will  satisfy  it ;  but  if  the  purchaser  have  a  fair  oppor- 
tunity to  see  for  himself,  to  judge  of  the  fitness  of  the  chattel, 
he  must  suffer  for  any  carelessness,  lack  of  judgment  or  skill ; 
though  where  he  relies  upon  the  judgment  or  skill  of  the  vendor, 
or  on  his  personal  information,  as  to  the  property  offered  by  him 
for  sale,  and  informs  him  of  the  use  to  which  it  is  to  be  applied, 
the  vendor  takes  upon  himself,  by  implication,  a  contract  to 
meet  this  want,  and  the  law  imposes  upon  him  a  warranty, 
when  the  sale  is  consummated,  that  he  has  done  so. 

The  rule  given  in  the  text,  that  where  the  vendor  is  not  in  possession  no  war- 
ranty is  implied,  is  not  received  without  dissent,  and  it  is  claimed  that  the 
distinction  between  sales  of  personal  property  in  possession,  and  out  of  posses- 
sion of  the  vendor,  is  without  proper  foundation,  and  stands  upon  no  sufficient 
reason  or  principle.  (Crosse  r.  Gardner,  1  Shower,  08;  Furniss  v.  Ijcicester,  Cro. 
Jac.  474;  Defreeze  v.  Trumper,  1  Johns.  274;  Spratt  v.  Jeffrey,  10  Barn.  &  Cress. 
249.) 

But  the  distinction  has  become  so  well  established  that  the  rule  is  now, 
beyond  reasonable  doubt,  that  a  vendor  in  j)ossession  does,  and  one  out  of  posses- 
sion does  not,  warrant  title  upon  a  sale  of  personal  property. 

1  Bartholomew  v.  Warner,  32  Conn.  98;Mockbee  v.  Gardner,  2  Harr.  &  Gill, 
17G;  Ricks  v.  Delahanty,  8  Porter,  133;  Prescott  v.  Holmes,  7  Rich.  Eq.  9;  Story 
on  Sales,  Sec.  367a.    But  see  Cripps  v.  Reade,  G  T.  R.  G06. 


§  126  WARRANTY    ON    SALE    OF  ANIMALS.  152 

If  I  go  to  a  dealer  and  ask  him  to  sell  me  a  horse  fit  to  carry 
me,  and  he  sells  me  one  which  lie  knows  to  be  unfit  to  ride,  he 
would  be  held  on  the  implied  warranty.^  So,  if  I  desire  ani- 
mals of  a  certain  grade  or  quality,  for  a  specific  purpose,  as 
sheep  to  mix  and  breed  with  my  flock  ;  a  jack,  stallion,  or  any- 
thing of  that  nature,  or  a  calf  from  some  special  breed  of  cat- 
tle, I  may  go  to  a  dealer  who  makes  a  specialty  of  the  business 
of  selling  such  as  I  want,  and  if  lie  undertakes  to  furnish  them,, 
the  law  imposes  on  him  a  warranty  that  they  are  as  desired  in 
the  respects  mentioned,  of  the  breed  indicated,  and  fit  for  the 
declared  purpose.^ 

§  126.   As  to  latent  defects,  the  law  implies  a  ■warranty 

against  them,  wlien  the  seller  is  aware  that  the  buyer  does  not 
rely   on  his   own  judgment,  but  on  that  of  the    vendor,    who 

^  Keates  v.  Cadog-an,  2  Eng.  Law  &  Eq.  K  320;  Demingu.  Foster,  42  N.  H.  174. 
In  Charter  v.  Hopkins,  4  M.  &  W.  406,  this  language  gives  the  rule:  "  Suppose 
a  party  offered  to  sell  me  a  horse  of   such  a  description  as  would  suit  my  car- 
riage, he  could  not  fix  on  me  a  liability  to  pay  for  it  unless  it  was  a  horse  fit  for 
the  purpose  it  was  wanted  for."     (Story  on  Sales,  Sec.  371.) 

2  Story  on  Sales,  Sec.  371,  Note  on  page  452  of  4th  Ed.  1871.  "  The  selling,  ixpon  a 
demand  for  a  horse  with  i^articular  qualities,  is  an  affirmation  that  he  possesses 
those  qualities."  "  If  a  man  sells  a  horse,  generally  he  warrants  no  more  than 
that  it  is  a  horse ;  the  buyer  puts  in  questions,  and  perhaps  gets  the  animal 
the  cheaper;  but  if  he  asks  for  a  carriage  horse,  or  a  horse  to  can-y  a  fe- 
male, or  one  fit  for  a  timid  or  infirm  rider,  he,  who  kno\A's  the  qualities  of  the 
animal,  and  sells,  undertakes,  on  every  principle  of  honesty,  that  it  is  lit  for 
the  puriioses  indicated." 

In  Brown  v.  Eldington,  2  M.  &  G.  279,  Chief  Justice  Tindal  says:  "AYhen  a 
party  undertakes  to  supply  an  article  for  any  particular  piu-i^ose,  he  warrants 
that  it  shall  be  fit  and  proper  for  that  purpose." 

Beals  V.  Olmstead,  24  Vt.  114.  Plaintiff  needed  some  hay  for  his  oxen,  and 
proposed  to  buy  it  of  defendant.  At  the  time  of  the  purchase  he  said  to  defend- 
ant: "You  know  what  tise  I  wish  to  make  of  the  hay:  I  want  it  to  feed  to  my 
oxen  during  the  spring  and  summer,  while  they  are  at  work  on  the  railroad." 
The  sale  was  made  upon  this  understanding,  but  the  hay  was  found  to  be  in 
bad  condition,  i^oorly  cured,  full  of  weeds,  and  not  fit  to  feed  to  the  oxen.  The 
<  ourt  said :  "  The  hay  was  bought  for  a  particular  use,  and  the  defendant  kne^v 
that  the  plaintiff  would  not  buy  an  iuferior  article.  The  sale  of  the  hay,  then, 
for  this  particular  use,  ordinarily  implies  a  certainty  that  it  is  fit  for  the  use." 
(Howard  v.  Hoey,  23  Wend.  350;  Lespard  v.  Van  Kirk,  27  Wis.  152.) 

Chief  Justice  Best,  in  Jones  v.  Bright,  5  Bing.  533,  thus  states  the  rule:  "If  a 
man  sells  a  horse,  generally  he  warrants  no  more  than  that  it  is  a  horse; 
but  if  the  buyer  asks  for  a  carriage  horse,  or  a  horse  to  can-y  a  female,  or  a 
timid  or  infirm  rider,  he,  who  knows  the  qualities  of  tlie  animal,  and  sells,  un- 
dertakes, on  every  i^rinciple  of  honesty,  that  it  is  fit  for  the  puriiose  indicated. 
The  selling,  upon  a  demand  for  a  liorse  with  particular  qualities,  is  an  affirma- 
tion that  he  i^ossesses  those  qualities." 


153  WARRANTY    ON    SALE    OF   ANIMALS.  §  127 

knows  of  the  existence  of  the  defects.  This  exception  to  the 
rule,  "  Let  the  buyer  beware,"  is  put  upon  the  ground  that 
where  a  serious  fault  exists,  which  is  hidden  from  the  buyer, 
but  known  to  the  seller,  the  latter,  by  his  silence,  is  guilty  of  a 
constructive  fraud  ;  where,  therefore,  the  defect  is  such  that  the 
vendee  could  not  have  detected  it,  he  is  deemed  to  have  relied 
upon  the  openness  of  the  seller,  and  if  the  seller,  being  himself 
aware  of  the  existence  of  the  defect,  does  not  disclose  it,  such  a 
concealment  is  a  fraud  sufficient  to  annul  the  contract.  The 
whole  doctrine  turns  upon  this,  that  he  who  abuses  the  confi- 
dence placed  in  him  by  another,  by  false  statements  in  the 
matter  of  a  purchase  and  sale,  shall  be  the  sufferer,  whenever, 
by  his  falsehood,  the  other  is  led  to  the  commission  of  an  act 
from  which  he  suffers  loss.^  And  an  expression,  even  of  belief 
or  opinion,  known  by  the  utterer  to  be  false,  and  which  is  by 
him  intended  to  mislead  the  other  party,  will,  if  it  actually  do 
mislead  him  to  his  injury,  be  treated  in  equity  as  a  fraud.^ 

§  127.   Where  animals  are  sold  by  sample  or  specimen, 

the  rule  is  as  with  other  chattels  ;  a  warranty  is  implied  that 
the  whole  lot  fairly  corresponds  with  the  specimen  given ;  as  if 
a  man  sell  a  flock  of  sheep,  a  lot  of  cattle,  or  any  other  chattels, 
by  exhibiting  a  sample,  it  is  equivalent  to  a  declaration,  on  his 

1  Sclmeider  v.  Heath,  3  Camp.  506 ;  Baylehole  v.  "Walters,  3  Camp.  154 ;  Cliitty 
oil  Cont.  553;  Hough  v.  Eichardson,  3  Story,  G90;  Doggett  v.  Emerson,  3  Story, 
700.  On  this  case,  page  733  et  seq.,  the  learned  judge  (Story)  who  delivered  the 
opinion,  says:  "It  appears  to  me  that  it  is  high  time  that  the  principles  of 
Courts  of  Equity,  upon  the  subject  of  sales  and  purchases,  should  he  better  un- 
derstood and  more  rigidly  enforced  in  the  community.  It  is  equally  promotive 
of  sound  morals,  fair  dealing,  and  public  justice,  that  every  vendor  should  dis- 
tinctly comprehend,  not  only  that  good  faith  should  reign  over  all  his  conduct 
in  relation  to  the  sale,  but  that  there  should  be  the  most  scrupulous  good  faith, 
an  exalted  honesty,  or,  as  it  is  felicitously  expressed,  uberima  fides,  in  every 
rei^resentation  made  by  him,  as  an  inducement  to  the  sale.  He  should  literally, 
in  his  representation,  tell  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 
If  his  representation  is  false  in  any  one  substantial  circumstance  going  to  the 
inducement,  or  essence  of  the  bargain,  and  the  vendee  is  thereby  misled,  the 
sale  is  voidable;  and  it  is  usually  immaterial  whether  the  representation  be 
willfully  or  designedly  false,  or  ignorantly  or  negligently  untrue. 

"The  vendor  acts  at  his  peril,  and  is  bound  by  every  syllable  he  utters,  or 
proclaims,  or  knowingly  impresses  upon  the  vendee,  as  a  lure  or  decisive  motive 
for  the  bargain." 

2  Story  on  Sales,  Sec.  169a;  Foster  v.  Swasey,  2  Woodb.  &  ]Minot,  217;  Id. 
225-G;  Smith  v.  Babcock,  2  Woodb.  &  Minot,  240. 


§   127  WARRANTY    OX    SALE    OF   ANIMALS.  154 

part,  that  the  specimen  is  a  fair  sample  of  the  whole,  and  that 
tiie  mass  shall,  at  least,  average  Avith  the  one  exhibited.^ 

If  the  sample  is  only  shown,  however,  to  enable  the  buyer 
to  form  an  opinion  of  the  probable  quality  of  all  of  the  prop- 
erty ;  or  if  the  purchaser  had  an  opportunity  to  examine  the 
lot ;  or  if  from  the  circumstances  it  appear  that  the  vendor  did 
not  so  sell  as  that  it  was  by  both  parties  understood  to  be  "  a 
sale  by  sample,"  no  warranty  is  implied.^ 

And  if  a  memorandum  of  the  sale  be  made  in  writing  it  is  not 
a  sale  by  sample  unless  expressly  so  declared  therein,  inasmuch 
as  the  note,  or  memorandum,  is  the  best  evidence  of  Avhat  the 
contract  was,  and  the  conversations  are  all  merged  into  and  made 
final  by  the  agreement  of  which  the  note  is  made  ;  on  the  other 
hand,  If  there  be  an  express  warranty,  and  the  article  sold  does 
not  answer  the  description  therein  mentioned,  even  if  it  should 
correspond  fairly  with  the  sample  which  was  shown  when  the 
warranty  was  given,  an  action  will  lie  on  the  warranty  for  the 
same  reason  that  the  express  warranty  is  the  final  contract,  and, 
as  such,  will  be  enforced.^ 

1  Story  on  Sales,  Sec.  37G.  In  an  old  English  case  decided  by  Lord  EUinbor- 
ougli,  (Gardner  ?■.  Gray,  4  Camp.)  tlie  maxim  Avas  stated:  "Wliere  there  is  no 
opportunity  to  inspect  the  commodity,  the  rule  caveat  emptor  does  not  apply." 
This  maxim  has  been  especially  regarded  as  correct  where,  the  sale  being  by 
sample,  the  bulk  is  not  pretended  to  be  exhibited.  (Leonard  v.  Fowler,  44  N.  Y. 
289.)  But  just  what  is  a  sale  by  sample  miglit  be  doubtful;  as  in  a  sale  of  wool 
the  broker  sent  samples  to  the  buyer,  and  offered  to  sell  if  the  other  would 
come  and  examine  the  lot;  the  buyer  did  so  to  some  extent,  examined  several 
bales,  and  was  offered  an  opportunity  to  have  them  all  opened,  if  he  desired,  for 
his  inspection.  He  purchased  the  wool,  and  it  proved  to  haA^e  been  deceitfully 
packed,  and  the  bales  were  full  of  rotten  fleeces.  Held,  not  to  be  a  sale  by  sam- 
ple; and  that  it  Avasa  case  where  the  doctrine  of  caveat  emptor  applied.  (Barn- 
ard V.  Kellogg,  10  AVall.  383;  Fay  v.  Raguet,  14  ]\Iinn.  273,) 

2  Lawton  v.  Kill,  Gl  Barb.  (N.  \^)  558;  Parkinson  v.  Lee,  2  East,  313.  In  Bierne 
V.  Dord,  2  Sandf.  (S.  C.)  89,  it  was  held  that,  to  constitute  a  sale  by  sample,  the 
contract  must  be  made  solely  Avith  reference  to  the  samjile,  and  it  must  appear 
that  the  sale  Avas  intended  and  understood,  by  the  parties,  to  be  a  sale  by  sam- 
ple.    (See  Hanson  v.  Busse,  45  111,  49G;  Woodward  v.  Libby,  58  Me.  42.) 

3  Biit  if  there  is  an  exjiress  Avritten  Avarranty,  and  the  iiurchaser  examines 
the  goods,  there  is,  by  this  examination,  no  waiA'er  of  Avarranty.  (Story  on 
Sales,  Sec.  355.)  And,  altliough  the  iiurchaser  takes  a  Avritten  memorandum 
containing  express  warranties  upon  some  special  points,  he  is  not  thereby  pre- 
cluded from  relying  on  the  warranty  otlierwise  implied  by  the  laAA',  1871.  ( Booth- 
by  V.  Scales,  27  Wis.  G2G. )  And  further,  in  this  case,  Avliich  was  a  sale  and  pur- 
chase of  a  fanning-mill,  it  Avas  held  that  "tlie  buyer  of  an  article  requiring 
skill  and  care  in  the  construction  and  arrangement  of  its  parts,  to  adapt  it  to 
its  purposes,  is  entitled  to  a  reasonable  time  after  its  deliA'ery  to  test  the  same, 


155  WARRANTY    ON    SALE    OF    ANIMALS.  §  128 

§  128.   Implied  warranty  created  by  fraud  in  the  sale. 

—  Fraud  vitiates  all  contracts.  Hence,  an  implied  warranty 
occurs  where  a  sale  has  been  effected  by  fraudulent  misrepre- 
sentations or  concealment  of  facts  which  the  vendor  was  bound 
to  disclose. 

There  is  also  another  class  of  implied  warranties,  which  result 
from  any  well  established  usage,  with  reference  to  Avhich  it 
may  fairly  be  assumed  the  contract  was  made.  Thus,  in  the 
case  of  Jones  v.  Bowden,^  it  was  said  that  where  sheep  were 
sold  as  stock  there  was  an  implied  warranty  that  they  were 
sound,  proof  having  been  given  that  such  was  the  custom  of 
the  trade,  viz.,  "  that  sheep  sold  as  stock  were  understood  to  be 
sheep  that  were  sound."  This  implied  warranty  from  usage 
may  result  where  no  general  custom  is  shown,  if  it  appears  that 
the  parties  have  had  many  similar  mutual  dealings ;  in  such  a 
case,  the  sale  will  be  presumed  to  be  made  in  compliance  with 
what  has  become  the  uniform  practice  and  the  understanding 
which  thereon  has  grown  up  between  the  parties ;  but  the  gen- 
eral usage  in  the  vicinity  or  the  course  of  dealing  between  the 
parties  must  have  been  so  universal  and  uniform  as  to  give 
strong  grounds  for  belief  that  the  parties  recognized  and 
assented  to  it.''^ 

and  ascertain  whether  it  is  adapted  to  the  purpose  intended,  and  to  return  it  if 
not  so  adapted."  (Tyew.  Fynmore, 3 Campb.  462;  Nicholsu.  Godts,  lOExch.  197; 
Willis  V.  Consequa,  1  Peters'  C.  C.  301. ) 

1  4  Taunt.  847-853  ;  Weal  v.  King,  12  East,  452. 

Story  on  Sales,  Sec.  211  :  "If  notliing  be  said  in  relation  to  the  terms  of  the 
sale,  it  ■will  be  presumed  to  be  made  in  compliance  with  the  general  usage  or 
custom  of  the  trade,  or  with  the  uniform  practice  and  course  of  dealing  between 
the  parties."  (Wood  v.  Wood,  1  Car.  &.  P.  59  ;  Moore  v.  Voughten,  1  Stark. 
'  487  ;  Scott  v.  Irving,  1  Barn.  &  Adol.  G05  ;  Stewart  v.  Aberdein,  4  Mees.  &  W. 
211.) 

2  Raitt  V.  Mitchell,  4  Camp.  140-149  ;  Clark  v.  Baker,  11  ISIetcalf,  18G  ;  Winson 
I'.  Dillaway,  4  Metcalf,  221,  223  ;  Mixer  v.  Coburn,  11  Metcalf,  559  ;  Sutton  v. 
Tatham,  10  Adol.  &  El.  27  ;  Bayliffe  v.  Bvitterworth,  1  Exch.  425. 

Story  on  Sales,  Sec.  3G1  :  "What  the  intention  of  the  parties  is  depends  often 
upon  the  usage  and  custom,  and  is  a  question  for  the  determination  of  a  jury. 
Thus,  upon  a  warranty  that  a  horse  is  sound,  the  actual  understanding  of  the 
parties  is,  in  a  great  measure,  dependent  uiion  the  custom  and  usage,  as  well  as 
upon  the  peculiar  circumstances  of  the  case." 

So,  by  the  same  author,  it  is  said,  in  note  3,  -p.  428:  "  It  seems,  moreover,  that 
the  custom  of  any  particular  trade  may  establish  an  implied  warranty  between 
the  parties  who  transact  business  therein  ;  it  being  presumed,  in  the  al)sence  of 
evidence  to  the  contrary,  that  the  dealings  of  the  parties  were  regulated  by  the 
custom." 


§   129  WARRANTY    ON    SALE    OF  ANIMALS.  156 

§  129.   The  measure  of  damages  on  breach  of  warranty 

of  personal  property  is  ordinarily  the  difference  between  the 
real  value  of  the  article  and  what  it  would  have  been  worth  if 
it  corresponded  to  the  warranty.  Where  the  Avarranty  has  been 
express,  the  Courts,  of  late  years,  have  gone  further  than  to 
make  up  to  the  buyer  this  difference  in  value,  and  have  given 
all  the  damages,  which  were  the  natural  result  from  the  breach, 
and  which  might  reasonably  have  been  anticipated  by  the  seller, 
and  thus  be  deemed  to  have  been  considered  by  the  vendor  at 
the  time  when  he  gave  the  warranty.^ 

In  a  late  case,  (1871)  it  was  held  "that  if  a  usage  be  adopted  by  implied  or 
tacit  understanding,  it  is  as  obligatory  upon  the  parties  as  if  incorporated  with 
the  contract  itself,  provided  the  usage  be  not  repugnant  to  or  inconsistent  witli 
the  terms  of  the  contract,  or  in  contravention  of  existing  rules  of  law."  {Ap- 
pleman  v.  Fisher,  34  Md.  540. ) 

1  "For  a  breach  of  warranty  in  the  sale  of  chattels,  the  measure  of  damages 
is  the  difference  between  the  actual  value  of  the  chattels  and  what  their  value 
would  have  been  if  they  had  been  as  warranted,  to  which  may  be  added,  in 
proper  cases,  the  reasonable  expenses  incurred  by  the  purchaser  in  consequence 
of  such  breach."     (Giffert  v.  West,  33  Wis.  C17. ) 

"The  difference  between  the  value  of  the  article,  as  warranted,  and  the  real 
value  or  market  value,  is  the  measure  of  damages  on  a  breach  of  warranty." 
(Seigworth  v.  Leffel,  Supreme  Court  Penn.  Jan.  Term,  1875.) 

"The  contract  price  does  not  enter  into  the  question  as  a  rule  of  measurement ; 
and,  in  an  action  to  recover  damages  on  the  warranty  of  a  horse,  the  true  meas- 
ure is  the  difference  between  the  value  of  the  horse,  if  he  had  been  sound,  as 
warranted,  and  his  value  in  the  diseased  state.  The  reason  is  a  conclusive  one. 
If  the  vendee  made  a  bad  bargain,  he  is  not  to  be  reimbursed  what  he  lost,  by 
his  simplicity,  in  damages  for  a  breach  of  the  warranty."    (Ibid.) 

Bro^vn  v.  Edgerton,  2  Mann.  &  Gran.  102  ;  Smead  v.  Ford,  102  E.  C.  L.  G12.  De- 
fendant contracted  to  deliver  to  plaintiff,  a  farmer,  a  threshing-machine  within 
three  weeks.  It  was  plaintiff's  i^ractice,  known  to  defendant,  to  thresh  wheat 
in  the  field,  and  send  it  thence  direct  to  market.  At  tlie  end  of  three  weeks, 
plaintiff's  wheat  was  ready  in  the  iield  for  threshing  ;  and  on  plaintiff's  remon- 
strating at  the  delay  in  the  delivery  of  the  machine,  defendant  several  times 
assured  him  it  should  be  sent  forthwith.  Plaintiif,  having  unsuccessfully  tried 
to  hire  another  machine,  was  obliged  to  carry  home  and  stack  the  wheat,  which, 
while  so  stacked,  was  damaged  by  rain.  The  macliine  was  afterward  delivered 
to  plaintiff,  who  paid  the  defendant  the  contract  price.  The  wheat  was  then 
tlu-eslied  ;  and  it  was  foimd  necessary,  owing  to  its  deterioration  by  tlie  rain,  to 
kiln-dry  it.  When  dried  and  sent  to  market,  it  sold  for  a  less  price  than  it  would 
have  fetched  had  it  been  threshed  at  the  time  fixed  by  tlie  contract  for  tlie  de- 
livery of  the  machine,  and  tlien  sold,  the  market  price  of  wheat  having  mean- 
while fallen. 

Held,  in  an  action  for  the  non-delivery  of  the  machine,  that  jilaintiff  was  en- 
titled to  recover  substantial  damages  in  respect  of  tlie  expense  of  stacking  the 
wheat,  of  loss  arising  from  its  deterioration  by  tlie  rain,  and  of  the  expense  of 
drying  it  in  the  kiln.  Held,  further,  that  he  was  not  entitled  to  recover  any 
damages  in  respect  of  tlie  fall  in  the  market  jirice  of  wheat. 


157  WARRANTY    OX    SALE    OF   ANIMALS.  §  129 

And  in  some  cases  of  express  warranty,  the  Courts  have  per- 
mitted the  jury  to  resjard  profits  which  might  reasonably  have 
been  anticipated  by  the  buyer  from  tlie  use  of  the  article  bought 
for  a  definite  purpose.  Thus,  where  seed  has  been  sold,  and 
warranted  to  be  of  a  peculiar  kind,  or  warranted  to  sprout  and 
produce  a  crop,  and  the  seed  was  different  from  the  kind  desig- 
nated, or  failed  to  produce  generally,  the  vendor  has  been  held 
for  more  than  the  mere  difference  in  the  value  of  the  seed.^ 

1  Hadley  v.  Baxendale,  9  Exch.  Ml.  'Where  two  parties  have  made  a  contract, 
which  one  of  them  has  broken,  tlie  damages  which  the  other  party  ought  to  re- 
ceive, in  respect  of  such  a  breach  of  contract,  should  be  such  as  fairly  and  rea- 
sonably may  be  considered  as  arising  naturally ;  that  is,  according  to  the  usual 
course  of  things,  from  such  a  breach  of  contract  itself,  or  such  as  may  reason- 
ably be  supposed  to  have  been  the  contemplation  of  both  parties,  at  the  time 
they  made  the  contract,  as  the  probable  breach  of  it.  (Page  v.  Pavey,  8  Carr  & 
Payne,  769  ;  Randall  v.  Ruper,  90  E.  C.  L.  [Ellis,  Blackburn  &  Ellis]  83;  Passin- 
ger  V.  Thomburn,  34  N.  Y.  634  ;  Griffin  v.  Colver,  16  N.  Y.  489.) 


§130  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  158 


CHAPTER  X 

AVAREANTY    OF    SOUNDNESS    OF  ANUNIALS. 

§  130.  What  constitutes  soundness  and  unsoundness. 

§  131.  Meaning  of  the  word  "  sound,"  in  warranty  of  horses. 

§  132.  The  measure  of  unsoundness. 

§  1.33.  Diseases  Avhich  do  or  do  not  constitute  unsoundness. 

§  130.   What  constitutes  soundness  and  unsoundness. 

— The  Avord  "  soundness  "  occurs  so  frequently  in  the  law 
treatises  and  decisions  in  matters  of  sale  and  warranty  of  ani- 
mals, that  its  value  as  a  descriptive  term  becomes  important. 
It  is  applied  to  all  domestic  animals  which  come  witliin  the 
class  known  as  "  live  stock "  ;  but  is  used  so  much  more  fre- 
quently with  reference  to  horses  than  other  animals  that,  in 
order  to  arrive  at  a  fair  understanding  of  its  value  as  a  de- 
scriptive term,  we  are  compelled  to  dwell  upon,  and  go  into 
full  details  in  regard  to,  its  significance  and  use  as  applied  to 
them. 

Mr.  Youatt,  in  his  work  on  "  The  Horse,"  ^  gives  the  rule  as 
follows :  "  The  horse  is  unsound  that  labors  imder  disease,  or 
has  some  alteration  of  structure  whicli  does  interfere  wath  Ids 
natural  usefulness.  The  term  '  natural  usef idness  '  must  be 
borne  in  mind.  One  horse  may  possess  great  speed,  but  is  soon 
knocked  up  ;  another  will  work  all  day,  but  cannot  be  got  be- 
yond a  snail's  pace  ;  a  third,  with  a  heavy  forehead,  is  liable  to 
stumble,  and  is  continually  putting  to  hazard  the  neck  of  his 
rider ;  another,  with  an  irritable  constitution,  and  a  loose,  washy 
form,  loses  his  appetite  and  begins  to  scour,  if  a  little  extra  work 
is  exacted  from  him.  The  term  '  unsoundness '  must  not  be 
applied  to  either  of  these ;  it  would  be  opening  far  too  Avide  a 
door   to  disputation    and    endless    wrangling.     The   buyer    can 

1  The  Horse,  by  Yv"m.  Youatt,  392. 


159  WAERANTY    OF    SOUNDNESS    OF    ANIMALS.  §  131 

discern,  or  ought  to  know,  whether  the  form  of  the  horse  is 
that  Avhich  will  render  him  liable  to  suit  his  purpose,  and  he 
should  try  him  sufficiently  to  ascertain  his  natural  strength,  en- 
durance, and  manner  of  going." 

This  definition  does  not  appear  fully  to  cover  the  ground 
taken  by  the  ruling  of  the  Courts :  Mr.  Youatt  makes  no  men- 
tion, in  his  definition,  of  such  alterations  of  structure  as  have 
resulted  from  accident,  while  the  English  rule,  now  well  estab- 
lished, gives  us  the  result  of  an  abler  and  more  diligent  study 
of  the  subject ;  and  from  this  rule  we  see  that  the  disqualifica- 
tion for  work,  which  renders  a  horse  unsound,  may  arise  either 
from  disease  or  accident,  and  as  said  in  an  important  English 
case,  "  a  man  who  buys  a  horse  warranted  sound  must  be  taken 
as  buying  him  for  immediate  use,  and  has  a  right  to  expect  one 
capable  of  that  use,  and  of  being  put  to  any  fair  work  the 
owner  chooses."  ^ 

§  131.  The  meaning  of  the  word  "sound,"  in  the  warranty 
of  an  animal,  Avill  depend  upon  local  custom  and  usage,  as  well 
as  upon  the  circumstances  of  each  case ;  and  what  the  inten- 
tion and  understanding  of  the  parties  was,  will  be  for  the  jury 
to  decide.^ 

Mr.  Chitty,  in  his  work  on  contracts,  says  :  "The  rule  as  to  an 
unsoundness  of  a  horse  is,  that  if,  at  the  time  of  the  sale,  the 
horse  has  any  disease  which  either  actually  does  diminish  the  nat- 
ural usefulness  of  the  animal,  so  as  to  make  him  less  capable  of 
work  of  any  description,  or  which,  in  its  ordinary  progress,  will 
diminish  the  natural  usefulness  of  the  animal ;  or  if  the  horse 
has,  either  from  disease  or  accident,  undergone  any  alteration  of 
structure  that  either  actually  does  at  the  time,  or  in  its  ordinary 

1  Kiddell  r.  Barnard,  9  ]\I.  &  W.  671 ;  Story  on  Sales,  Sec.  3G1.  But  the  custom 
or  usage  must,  by  competent  testimony,  be  shown  to  be  uniform ;  and  even  an 
occasional  practice,  tolerated  to  a  certain  extent,  in  a  certain  department  of 
business  for  any  given  year,  can  only  be  established  by  i^roof  of  siaecilic  instan- 
ces within  the  designated  period.  (Chenery  v.  Goodrich,  106  Mass.  566.)  A  usage 
of  trade,  however  local  and  partial,  will  govern  a  contract  proved,  or  legally 
presumed,  to  have  been  made  with  reference  thereto.  (Appleman  v.  Fisher,  34 
Md.  540.) 

2  Lewis  V.  Peake,  7  Taunt.  153;  Atterbury  v.  Fairmauer,  8  Moore,  32;  Hutch- 
inson V.  Bowker,  5  Mees.  &.  W.  535;  Hart  v.  Hammett,  18  Vermont,  127.  In 
this  case,  i3.  130,  in  the  opinion  of  the  Court  it  is  said  :  "  The  object  of  admitting 
proof  of  usage  in  such  a  case  is,  that  effect  may  be  given  to  the  contract  accord- 
ing to  the  intent  of  the  parties.  Can  there  be  any  sound  objection  to  the  de- 
fendant's showing,  by  parol,  the  sense  in  which  the  terms  were  in  fact  used  by 
the  parties  when  making  the  contract  ?" 


§  132-3       WARRANTY   or    SOUNDNESS    OF   ANIMALS.  160 

effects  will,  diminish  the  natural  usefulness  of  the  horse,  such  a 
horse  is  unsound."  ^ 

Another  standard  author  says :  "  When  a  horse  is  warranted 
'  sound,'  any  infirmity,  Avhicli  renders  it  less  fit  for  present  use 
and  convenience,  is  an  unsoundness  within  the  meaning  of  such 
a  warranty,  and  it  is  not  necessary  that  the  infirmity  should  be 
of  a  permanent  nature."  ^ 

§  132.  The  measure  of  unsoundness,  and  the  question  of 
whether  the  infirmity  is  of  a  permanent  character,  cannot  be 
reo;ardcd  in  ascertainino;  whether  there  has  been  a  breach  of 
a  warranty  that  the  horse  is  sound ;  the  word  "  sound,"  when  put 
into  a  contract,  has  a  purpose  to  fulfill ;  it  must  be  understood 
to  mean  what  it  expresses — that  is  to  say,  that  the  animal  is  sound 
and  free  from  disease  of  any  nature  such  as  would  impede  the 
natural  usefulness  of  the  animal. 

If  the  disease,  the  unsoundness,  be  slight  and  easily  cured, 
the  damages  upon  a  suit  for  breach  of  warranty  would  be  small, 
but  it  would  be  unsafe  to  measure  the  extent  of  the  defect  in 
the  first  instance,  when  regarding  the  question  of  whether  the 
breach  of  warranty  has  occurred.^ 

The  names  and  descriptions  of  the  several  diseases  which 
have  come  to  be  regarded  as  unsoundness  may  perhaps  more 
properly  belong  to  a  work  on  veterinary  surgery  than  to  a  law 
book,  but  the  Courts  having  adjudicated  in  some  instances,  it 
cannot  be  amiss  to  follow  them. 

§  133.  Diseases  which  do  or  do  not  constitute  un- 
soundness.—  A  vice,  technically,  is  a  bad  habit,  of  such  a 
character  as  to  materially  and  injuriously  affect  the  animal  to 
such  an  extent  as  to  impede  his  natural  usefulness  for  the  pur- 
pose for  which  he  is  used  or  intended ;  soundness  and  freedom 
from  vice  are  so  often  and  naturally  mentioned  and  regarded  in 
conjunction  as  to  render  it  proper  so  to  treat  them ;  and  as  a 
detailed  list  of  the  various  diseases,  defects,  and  vices  of  ani- 

1  Chitty  on  Contracts,  464. 

2  Story  on  Sales,  Sec.  362. 

SKimlellw.  Burkhard,  9  Mees.  &"W.  668;  Coates  v.  Stephens,  2  Mood.  &Eob, 
157;  Ellton  v.  Brogden,  4  Camp.  281. 


161  WARRANTY    OF    SOUNDNESS    OF    ANIMALS.  §  133 

mals,  in  alphabetical  order,  is  as  convenient  a  mode  as  any  in 
which  to  present  the  subject,  such  a  course  is  pursued. 

Asthma  causes  a  short,  soft  cough  in  horses,  and  is  easily 
recognized.  It  more  seriously  affects  the  animal  in  cold  than 
in  warm  weather ;  frequently  the  attack  is  slight  and  the  dis- 
ease not  very  serious,  but,  there  being  a  chronic  disease,  pre- 
disposing to  lung  diseases,  horses  affected  by  asthma  are  regarded 
as  unsound.^ 

Abrasions  are  unsoundness  until  perfectly  healed.^ 

Backing  and  gibbing,  or  baulking,  are  generally  the  result  of 
bad  breaking.  When  the  habit  becomes  confirmed,  it  is  said  to 
be  impossible  permanently  to  cure  a  horse  of  this  bad  habit,  and 
it  is  one  Avhich  constitutes  a  breach  of  warranty  of  "  freedom 
from  vice,"  as  it  is  dangerous,  and  diminishes  a  horse's  natural 
usefulness.^ 

Biting,  wlien  dangerous,  is  a  vice.  Crib-biting  is  not  such 
an  unsoundness  as  to  entitle  a  purchaser  to  recover  under  a 
general  warranty,"*  but  it  does  constitute  a  breach  of  Avarranty 
that  the  animal  is  free  from  vice. 

Blindness  is  undoubtedly  an  unsoundness;  but  vvdiere  cloudi- 
ness of  the  eye  or  opacity  of  the  lens  occurs  after  the  sale,  to 
constitute   a  breach   of    warranty  it  must    appear  either  that 

1  Hanover  on  Horses,  p.  57. 

8  Ibid. 

s  Olipliant's  Law  of  Horses,  p.  70. 

*  Story  on  Sales,  Sec.  362.     But  see  Washburn  v.  Cuddihy,  8  Gray,  430. 

In  Margetson  r.  Wright,  5  Moore  &  ]'.  GOO,  was  sale  and  warranty,  peculiar  in 
this:  the  vendor  informed  the  buyer  that  the  horse,  a  racer,  was  a  crib-biter: 
the  horse  had  a  splint,  which  was  quite  apparent  at  the  time  of  the  sale  ;  not- 
withstanding these  two  defects,  the  vendor  warranted  that  the  horse  Avas  sound, 
wind  and  limb  ;  this  warranty  was  held  not  to  extend  to  those  two  defects,  one 
of  which  was  patent  and  the  other  declared  by  the  A-endor.  The  general  rule 
has  come  to  be  considered  that  if  a  party  buys  an  animal,  knowing  it  to  be 
blind,  or  subject  to  some  other  confessed  imsoundness,  he  cannot  on  account  of 
the  defect,  of  AA-hich  he  was  aware,  recoA'er  on  a  wan-auty  that  the  animal  was 
sound,  the  reasoning  being  that  one  cannot  rely  on  a  warranty  that  an  animal 
is  sound  when  he  knows  the  contrary  to  be  the  truth.  (Margetson  v.  Wright,  7 
Bing.  G05  ;  Mellish  v.  Motteaux,  Peake,  N.  P.  115  ;  Schuyler  v.  Euss,  2  Caines, 
202;  Fisher  v.  Pollard,  2  Head,  [Tenn.]  314.) 

But,  in  a  like  case,  (1869)  Pinney  v.  Andru,  41  Vermont,  631,  it  Avas  held  that  a 
party  may  warrant  against  an  obvious  and  patent  defect  as  well  as  against  any 
other. 

Farm — 11. 


§  133  WARRANTY    OF    SOUNDNESS    OP    ANIMALS.  162 

there  was  Inflammation  before  the  sale,  or  by  proper  testimony 
by  veterinary  surgeons  that  there  must  liave  been  inflammation 
before  the  time  of  sale.^ 

Blood  and  bog  spavin  is  caused  by  overstrain  upon  the  ten- 
dons of  the  leg,  making  an  enlargement  of  the  little  bags  at 
their  ends,  such  as  wind-galls  and  thorough-pins ;  when  the 
blood-vessel  of  the  limb  which  passes  over  this  bag  becomes 
distended  with  blood,  this  defect  becomes  blood-spavin. 

This  disease,  in  its  various  forms,  usually  produces  lameness 
and  constitutes  unsoundness.^ 

Bone-spavin  is  always  regarded  as  unsoundness,  whether  it 
produces  lameness  at  the  time  of  sale  or  not.''  This  disease  is  an 
aifection  of  the  hock-joint.  An  inflammation  is  caused  by  too 
great  weight  thrown  upon,  or  by  a  concussion  which  strains, 
the  inner  splint-bone ;  this  inflammation  affects  the  cartilaginous 
substance  which  unites  this  inner  splint-bone  to  the  shank-bone, 
so  that  the  cartilage  is  absorbed,  and  the  union  between  thq 
splint-bone  and  shank  becomes  bony  and  inflexible  to  such 
an  extent  as  to  destroy  the  elastic  action  between  them.  A 
splint  in  the  form  of  a  tumor  appears  on  the  inside  of  the  hind 
leg,  in  front  of  the  union  of  the  head  of  the  splint-bone  with 
the  shank ;  it  is  this  which  is  generally  denominated  a  bone- 
spavin.  Almost  without  exception  it  ultimately  produces  serious 
lameness,  and,  with  hard,  straining,  or  quick  work,  the  enlarge- 
ment spreads  rapidly  and  interferes  with  the  flexion  of  the 
hock. 

"  Broken-backed,"  caused,  ordinarily,  by  a  horse  having  been 
worked  too  young,  is  where  some  of  the  bones  of  the  back  or 
loins  become  anchylosed,  being  united  together  by  bony  matter, 
instead  of  ligaments  ;  the  animal  becomes  unwilling  to  lie  down, 
or,  when  down,  to  get  up ;  turns  with  difficulty  in  the  stall,  and 
is  generally  awkward  and  unwieldy ;  manifesting  lack  of  elas- 
ticity in  movement,  and  especially  under  the  saddle  ;  when  in 
this  condition,  the  horse  is  said  to  be  "  broken-backed,"  or 
"  chinked  in  the  chine,"  and  where  the  injury  is  grave  enough 

^  Olipliant's  Law  of  Horses,  p.  72. 

2  Ibid  ;  "Watson  v.  Dentou,  7  C.  &  P.  86  ;  Law  of  Horse,  l)y  Hanover,  p.  57. 

8  Ibid. 


163  WAEEANTY    OF    SOUNDNESS    OF   ANIMALS.  §  133 

to  become  apparent,  and  to  impair,  as  indicated,  the  natural 
usefulness  of  the  animal,  he  is  deemed  unsound.^ 

Broken  knees  do  not  constitute  unsoundness,  after  the  wounds 
are  healed,  unless  they  interfere  with  tlie  action  of  the  joint ; 
and  a  horse  may  fall  from  mere  accident,  or  through  the  fault 
of  the  rider.^ 

Broken  wind  is  the  rupture,  or  running  together,  of  some  of 
the  air  cells  ;  the  breathing  is  by  one  effort  of  inspiration,  with 
two  of  expiration,  the  latter  occupying  about  double  the  time 
of  the  former;  the  peculiarity  may  be» observed  by  regarding 
the  flank  of  the  animal,  and  watching  the  respiration.  It  is, 
confessedly,  an  unsoundness,^  as  it  is  incurable,  although  it  docs 
not  materially  unfit  the  animal  for  the  race-course  or  the  hunt- 
ing field,  except  on  a  cold  or  foggy  day. 

Bronchitis. — The  division  of  the  wind-pipe,  just  before  it 
meets  the  lungs  ;  the  bronchial  tubes  become  inflamed ;  this  in- 
flammation is  called  bronchitis,  and  is  characterized  l)y  quicker 
and  harder  breathing  than  catarrh  usually  presents,  and  by  a 
peculiar  wheezing,  which  is  relieved  by  the  coughing  up  of 
mucus ;  it  is,  in  effect,  catarrh,  which  has  extended  to  the  en- 
trance of  the  lungs,  and  it  is  undoubtedly  unsoundness.^ 

Bleeding  may  cause  such  a  material  blemish  as  to  constitute 
unsoundness,  so  long  as  the  blemish  (generally  a  large,  unsightly 
knot,  or  lump,  on  the  neck-vein)  continues. 

Bald  or  bare  places  on  an  animal  seldom  deserve  regard  in 
this  connection ;  they  are  unsightly,  and  might  be  classed  as 
"blemishes,"  but  do  not  rise  to  the  dignity  of  unsoundness, 
unless  it  be,  in  a  saddle-horse,  that  the  baldness  is  but  an  indi- 
cation of  a  serious  scald,  only  superficially  healed  over. 

1  Hanover  on  Law  of  Horse,  pp.  58-9;  Oliphant's  Law  of  Horses,  pp.  73-4; 
Id.  74. 

2  Atkinson  v.  Horridge,  Veterinarian,  Vol.  22,  p.  452 ;  Sympson  v.  Davis,  Id. 
528,  438. 

3  Oliphant's  Law  of  Horses,  p.' 74;  Hanover  on  Horse,  \y.  G2. 

*  Id.  pp.  G3-4;  Oliphant,  p.  102.  This  autlior,  speaking  of  strangles,  says': 
"  Strangles  are  peculiar  to  young  liorses,  almost  all  of  which  ha've  it  once.  It 
is  quite  different  from  glanders,  though  they  have  sometimes  been  confounded. 
In  its  early  stage  it  resembles  a  common  cold,  and  is  accompanied  with  sore 
throat.  It  is  not  dangerous,  and  is  unsoundness  only  during  the  time  the  horse 
is  ill  with  it." 

But  in  his  work  on  sales.  Sec.  362,  Mr.  Story  regards  strangles  as  unsoundness, 
prima  facie,  and  that  the  warrantor  must  take  the  affirmative  to  prove  that  the 
attack  is  of  but  a  temporary  character. 


§  133  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  164 

Bar-slioes,  constantly  required,  indicate  such  a  condition  o£ 
the  hoof  as  to  constitute  unsoundness ;  for  if  there  have  been 
sand-cracks,  corns,  thrushes,  or  anything  of  that  character, 
which  remain  uncured,  so  that  the  constant  use  of  bar-shoes  is 
a  necessity,  the  horse  is  not  sound. 

Bandages,  also»  when  constantly  needed,  manifest  such  a  reli- 
ance on  these  aids  and  supports  as  is  inconsistent  with  sound- 
ness. 

Bastard  strangles,  or  vivos,  generally  occurs  when  a  horse 
has  not  had  the  strangles  at  the  usual  time.  The  original 
disease,  "  strangles,"  is  not  dangerous  ;  but  in  horses  fully  ma- 
tured, "  vives,"  which  really  means  a  revival  of  the  attack,  and 
is  commonly  known  as  bastard  strangles,  is  difficult  of  cure,  and 
unless  properly  treated,  in  an  efficient  manner,  may  run  into 
broken  wind,  or  even  glanders  ;  so  that  vives,  or  bastard  stran- 
gles, is  generally  considered  tmsoundness,  while  the  original 
disease,  strangles,  is  not  so  regarded,  except  while  the  horse  is 
actually  ill  with  them. 

Bent-before — that  is  to  say,  when  overwork,  pain  in  the  feet, 
or  "  flat  feet "  have  caused  the  fore-legs  to  bend  forward  at  the 
knees — is  unsoundness.^ 

Canker  is  a  separation  of  the  homy  part  of  the  hoof  from 
the  sensitive  part  of  the  hoof,  and  the  growth  in  the  interstice  of 
fungous  matter,  which  sometimes  spreads  over  the  whole  frog. 
It  is  caused  by  bruise,  puncture,  corn,  or  thrush  ;  is  very  diffi- 
cult to  cure,  and  is  unsoundness.^ 

Capped  hocks  is  sometimes  the  result  of  lying  on  an  uneven 
floor,  or  by  kicking  in  the  stall ;  they  are  not  classed  as  un- 
soundness^ but,  v.dien  caused  by  kicking,  are  occasionally  rated 
a  vice.  In  many  instances,  however,  capped  hocks  ai'c  the  con- 
sequence of  a  sprain  or  enlargement  of  the  hock ;  when  so,  they 
are  an  unsoundness.^ 

1  Hanover  on  tlie  Horse,  p.  64.  When,  however,  there  is  no  jiain,  and  the  de- 
viation from  the  natural  line  is  but  slight,  and  the  animal  can  properly  do  his 
work,  it  is  not  unsoundness. 

2  Oliphant's  Law  of  Horses,  p.  75. 

3  rbid  ;  Hanover  on  Horse,  p.  06.  "Thrushes,  neglected,  will  turn  to  canker. 
This  disease  of  the  hoof  is  easily  detected,  and  is  very  troublesome  to  cure.  A 
cankered  horse  is  unsound." 

But  in  a  note  to  Appendix  of  Lib.  W.  K.  "Tlie  Horse,"  Ed.  18G2,  522,  an 
opinion  is  given  that  it  is  not  an  unsoundness,  on  the  ground  that  it  is  never  oc- 
casioned by  strains,  and  is  therefore  no  more  than  a  blemisli. 


IGo  WAREANTY    OF    SOUNDNESS    OF   ANIMALS.  §  133 

Chest-founder,  or,  as  it  was  formerly  called,  anticor^  is  a  ten- 
derness about  the  muscles  of  the  breast,  with  occasional  swell- 
ing, and  after  a  time  there  becomes  apparent  a  shrinking  of  the 
muscles, of  the  chest.     It  is  evidently  an  unsoundness.^ 

Cataract  is  unsoundness.  (See  Blindness.)  So  also  is  cloudi- 
ness of  the  eye,  as  it  is  ahnost  sure  to  end  in  complete  opacity 
of  the  lens,  cataract,  and  blindness. 

"  Chinked  in  the  chine  "  is  synonymous  with  "  broken-backed." 

Contraction  is  where  the  foot  loses  its  circular  form,  becomes 
long  and  narrow,  especially  at  the  heel ;  it  is  not  necessarily  un- 
soundness, but  may  become  so  if  lameness  results  therefrom.^ 

Corns  are  seldom  radically  cured.  They  materially  interfere 
with  the  natural  usefulness  of  the  animal,  and  are  an  unsound- 


ness 


Cough  is  generally  subdued  without  much  difficulty  when  re- 
sulting from  catarrh  or  common  cold ;  yet  it  is  now  the  law,  as 
settled  by  the  later  English  authorities,  that  if  the  horse  had  at 
the  time  of  sale  a  cough,  whether  permanent  or  temporary,  it 
constitutes  a  breach  of  the  warranty  of  soundness.^ 

1  Hanover  on  Horse,  p.  G8  ;  Oliphant's  Law  of  the  Horse,  p.  7G  ;  Atterbuiy  v. 
Fairmauer,  8  ISIoore,  32.  Chest-founder  was  for  a  long  time  confounded  with 
rheumatism  ;  but  it  is  now  ascertained  to  be  a  result  from  navicular  disease, 
which,  j)reventing  the  fore-legs  from  being  exercised  to  the  same  extent  as  be- 
fore, iirodiices  an  absorjjtion  of  the  muscles  of  the  chest.  Anticor  is  distin- 
guished from  chest-founder,  and  generally  considered  as  being  an  abscess  of 
the  brisket. 

2  Hanover  on  the  Law  of  Horses,  p.  65  ;  Oliphant's  Law  of  Horses,  p.  76. 
Lameness  usually  accompanies  the  beginning  of  contraction,  and  when  contrac- 
tion continues  to  exist  for  any  considerable  length  of  time,  lameness  almost  in- 
variably results  therefrom. 

Contraction  may  be  caused  by  neglect  of  paring,  by  suffering  the  shoes  to  re- 
main on  too  long,  by  want  of  the  natural  moisture  becaiise  of  the  feet  having 
been  kept  too  dry,  or  by  thrushes  ;  but  these  last  are  more  often  the  resvilt  from 
ratlier  tlian  of  contraction.  The  cause  of  that  contraction,  however,  wliicli  luost 
often  produces  lameness  of  a  permanent  character,  is  an  inflammation  of  the 
little  plates  which  cover  the  coffin-bone,  but  not  sufficiently  intense  to  be  char- 
acterized as  acute  founder.     (By water  v.  Richardson,  1  Ad.  &  E.  508.) 

3  Oliphant  on  the  Law  of  Horses,  p.  77;  Hanover,  pp.  68-9.  In  the  angle  be- 
tween the  bars  and  the  quarters,  the  horn  of  the  sole  has  sometimes  the  appear- 
ance of  being  red  and  spongy;  the  horse  shows  pain  when  the  spot  is  touched, 
and,  if  tlie  matter  be  neglected,  so  much  inflammation  is  produced  that  sup- 
puration follows,  and  is  succeeded  by  qxiittor,  and  the  matter  either  landermines 
the  horny  sole  or  is  discharged  at  the  coronet.  Corns  seldom  appear  on  the  hind 
feet.  In  any  situation,  they  are  very  seldom  radically  cured,  though  temporary 
relief  may  be  obtained,  and  manifestly  constitute  unsoundness. 

*  Elton  r.  Erogden,  4  Camp.  281.  Lord  Ellenborough  said:  "While  a  horse 
lias  a  cough  I  say  he  is  unsound,  although  that  may  be  only  temporary  or  may 


§  133  AVAERANTY    OF    SOUNDNESS    OF   ANIMALS.  166 

Curb  is  an  enlargement  at  the  back  of  the  hoek,  about  three 
or  four  inches  below  the  point ;  it  is  caused  by  an  exertion  of 
more  than  usual  violence,  or  by  a  spring,  or  sudden  jar.  A 
horse  with  a  curb,  at  the  time  of  the  sale,  is  unsound,  within  the 
line  of  a  general  warranty,  but  if  it  throw  out  a  curb  immedi- 
ately after  sale  it  is  no  breach  of  the  warrant.^ 

Cutting  is  not  a  vice  or  a  breach  of  Avarranty,  although  a  se- 
rious annoyance  ;  the  buyer  generally,  with  a  fair  share  of  pru- 
dence, can  detect  the  signs  of  the  habit,  and  the  rule  caveat  emp- 
tor applies.^ 

Dropsy  is  of  two  kinds,  that  of  the  skin,  and  of  the  heart ;  in 
the  former,  dropsical  swellings  most  frequently  appear  on  the 
chest  and  fore-legs  ;  they  are  results  of  weakness  from  other  dis- 
eases rather  than  a  distinct  malady,  and  sometimes  owe  their  ex- 
istence to  the  debility  which  accompanies  the  change  of  coat  in 
the  spring  of  the  year ;  the  latter  is  where  the  pericardium  of 
the  heart  becomes  inflamed,  the  secretion  of  the  pericardium  is 
increased,  and  so  much  fluid  accumulates  as  to  obstruct  the  beat- 
ing of  the  heart.     Dropsy  of  either  kind  is  imsoundness.'^ 

Enlarged  glands  often  appears  with  catarrh,  and  almost  al- 
ways with  any  serious  affection  of  the  chest,  and  most  com- 
monly remains  after  the  cold  or  fever  has  disappeared.  If  the 
enlargement  is  considerable  and  tender,  if  the  gland  at  the 
root  of  the  ear  partakes  of  it,  and  the  membrane  of  the  nose 
presents  an  unusually  red  appearance,  the  commencement  or 
lurkinsr  of  some  insidious  disease  is  to  be  feared :  and  a  horse 
under  such  circumstances  should  be  deemed  vmsound. 

Enlargement  of  the  hock  so  materially  affects  the  compli- 
cated structure  of  the  hock-Joint,  that  although  the  horse  may 
appear  to  Avork  avcII  for  a  considerable  time,  he  Avill  become 
lame,  most  commonly  on  a  fcAv  days'  hard  Avork. 

A  decided  case  of  enlarged  hock  is  an  unsoundness,  unless  it 
is  a  mere  blcinish,  the  result  of  external  injuries.* 

prove  mortal.  Any  infirmity  which  renders  a  horse  less  fit  for  present,  use  and 
convenience  is  an  unsoundness."  (Coates  v.  Stephens,  2  M.  &  Rob.  157.)  But  see 
Bolden  v.  Broyden,  2  M.  &  Rob.  113. 

1  Hanover  on  Law  of  Horses,  p.  69 ;  Dickenson  v.  Follett,  1  M.  <Sr  Rob.  299. 

2  Eaves  v.  Dixon,  2  Taunt.  343-5;  Oliphant's  Law  of  Horses,  pp.  84-(;;  Ibid. 
8  Ibid,  pp.  &i-5. 

*  Dickenson  v.  Follett,  1  INI.  &  Rob.  299.  And  (sven  if,  at  tlie  time  of  sale  and 
warranty,  the  horse  showed  curby  hocks,  i.  e.,  a  peculiar  form  of  liocks  in- 


167  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  §  133 

False  quarter  is  a  serious  defect  and  frequent  cause  of  lame- 
ness ;  it  is  exceedingly  difficult  to  remedy,  and  must  be  consid- 
ered an  unsoundness. 

Farcy,  which  is  a  disease  of  the  absorbents  of  the  skin,  is  an 
unsoundness ;  it  is  a  type  of  the  disease  which  in  its  different 
stages  is  farcy  or  glanders.  The  symptoms  of  the  two  are  not 
similar,  but  the  maladies  differ  in  their  results  and  effects  only 
in  that  glanders  is  generally  incurable,  while  farcy,  in  its  early 
stage,  or  mild  form,  may  be  successfully  treated.  Water  farcy 
is  dropsical  affection  of  the  skin,  either  of  the  chest  or  the 
limbs  generally,  and  is  also  an  unsoundness. 

Fever  in  the  feet,  or  acute  founder,  is  so  liable  to  render  a 
horse  permanently  lame  as  to  constitute  unsoundness.^ 

Glanders  is  the  worst  of  all  diseases  for  the  horse  ;  it  has 
been  known  more  than  fifteen  hundred  years,  and  no  cure  has 
been  found  for  it.  It  is  an  unsoundness,  of  course.^  The  mo- 
ment of  the  incipiency — that  is,  if  he  really  have  the  seeds  of  it 
in  him — the  animal  is  unsound,  although  it  may  be  some  time 
before  the  disease  becomes  fully  developed.^ 

Glaucoma  is  a  dimness  of  sight  from  an  opacity  of  the  vitre- 
ous humor ;  it  is  not  easily  distinguished  to  exist,  and  can  only 
be  discovered  by  a  very  attentive  examination  of  the  eye ;  it 
clouds  the  sight,  and  is  unsoundness.* 

Goggles  has  been  held  to  be  unsoundness  in  sheep  ;  it  is  gen- 
erally believed  to  be  caused  by  too  close  breeding,  and  no  means 
are  known  for  discovering  its  existence  imtil  it  shows  itself  b^'^ 
the  death  of  large  proportions  of  the  flock.^ 

dicative  of  coming  curbs,  sometimes  called  co\r  hocks,  from  a  resemblance 
to  those  of  cows,  in  that  the  hocks  turn  inward  and  the  legs  form  a  considerable 
angle  outward,  so  that  the  angular  ligaments  are  continually  on  the  stretch  to 
conline  the  tendons.     (Brown  v.  Elkington,  8  M.  &  "W.  132.) 

1  This  is  caused  generally  by  leaving  a  horse  in  a  draft,  or  where  it  is  cold, 
after  violent  exertion;  a  fever  in  the  feet  is  the  result;  this  is  difficult  to  subdue, 
and  sometimes  leaves  fearful  consequences,  such  as  loss  of  the  hoof,  or  perma- 
nent injury.    (Lib.  U.  K.  "The  Horse,"  290.) 

2  The  i)resence  of  glanders  is  first  marked  by  a  discharge  from  the  nostrils, 
or  one  of  them,  differing  from  that  of  catarrh  in  that  it  is  usually  lighter  and 
clearer  in  its  color,  and  more  glutinous,  or  sticky.  It  is  not  discharged  occasion- 
ally and  in  large  quantities,  like  the  mucus  of  catarrh,  but  is  constantly  run- 
ning from  the  nostril.    ( Oliphant  on  the  Law  of  Horses,  p.  85. ) 

3  Woodbury  v.  Kobins,  10  Cusli.  (Mass.)  520. 

^  Settle  V.  Gamer,  N.  P.  1857 ;  Westminster  Farrier  Assizes,  1857. 
s  Joliff  V.  Benedict,  E.  &  M.  136. 


§  133  WARRANTY    OF    SOUNDNESS    OF    ANIMALS.  168 

Gutta  levena,  commonly  known  as  "  glass  eye,"  is  a  species 
of  blindness,  and  is  an  unsoundness.^ 

Kicking  in  tlic  stall  is  sometimes  a  vice,  but  not  such  a  habit 
as  to  be  classed  as  unsoundness ;  it  is  more  common  to  mares, 
and  results  from  irritability  rather  than  viciousness  ;  kicking  in 
harness  is  a  vice,  without  doubt,  and  is  a  habit  of  which  horses 
are  seldom  cured ;  it  sometimes  is  the  result  of  playfulness^  and, 
not  being  a  habit,  disappears.^ 

A  kidney-dropper  will  appear  quite  Avell  at  starting,  but  after 
traveling  a  short  distance  will  come  to  a  dead  standstill ;  a  kid- 
ney-dropper is  worthless  and  unsound. 

Lameness,  whether  temporary  or  permanent,  is  an  unsound- 
ness ;  it  is  impossible  to  say  how  long  it  may  continue,  and  the 
rule  given  by  Lord  Ellenborough,  that  any  warranty  of  sound- 
ness is  broken  if  the  animal,  at  the  time  of  sale,  had  any  infirm- 
ity upon  him  which  rendered  him  unfit  for  service,  and  so  the 
learned  judge  declares  that  lameness  is  such  an  infirmity .^ 

Laminitis  is  an  inflammation  of  the  medium  which  connects 
the  coffin-bone  with  the  inside  of  the  hoof ;  the  toe  becomes 
tender,  is  favored,  the  horse  puts  his  heel  to  the  ground  first, 
and  goes  short ;  lameness  ensues,  and  laminitis  is  unsoundness.* 

Lampas  is  a  fullness  in  the  mouth  of  young  horses,  caused  by 
a  swelling  of  the  lower  bars  of  the  palate  ;  they  become  sore, 
and  the  animal,  therefore,  feeds  badly  ;  they  are  imsoundness 
only  during  their  continuance. 

Liver  diseases  constitute  unsoimdness,  as  a  diseased  liver  leads 
to  such  complications  of  maladies  as  necessarily  intci-fcre  with 
the  usefulness  of  the  animal.^ 

A.11  diseases  of  the  lungs  ai-e  also  unsoundness,  for  the  same 

1  The  pupil  becomes  dilated,  is  immovable,  bright,  aud  glassy;  it  is  palsy  of 
tlte optic  nerve;  it  may  be  caused  by  improper  treatment  of  the  staggers,  or  by 
any  treatment,  or  other  means,  which  induces  a  rush  of  blood  to  the  head. 

2  In  Wisconsin  a  man  allowed  a  person,  to  whom  he  Avas  trying  to  sell  a 
horse,  to  try  him  in  harness;  the  vendor  knew  that  he  was  excitable  and  liable 
to  kick;  he  did  so,  and  the  Court  held  that  the  vendor  was  responsible  for  the 
damages.     (Smith  v.  Justice,  13  Wis.  GOO.) 

3  Elton  V.  Broyden,  4  Campb.  281;  Elton  v.  Gordon,  1  Stark.  N.  P.  C.  127: 
GaA\Tiont  V.  Bass,  2  Esp.  G73. 

*  Hall  V.  Kogerson,  before  Mr.  Baron  Alderson,  New  Castle  Spring  Assizes, 
1847;  Oliphant,  p.  444;  Smart  v.  Allison,  Ibid,  450. 
5  Hanover  on  Law  of  Horses,  p.  81 ;  Buckingham  v.  Rogers,  Oliphant,  455. 


169  WAERAXTY    OF    SOUNDNESS    OF   ANIMALS.  §  133 

general  reason ;  they  constitute  an  infirmity  Avitliin  the  rule  of 
impairing  the  usefulness  of  the  animal ;  given  in  Elton  v.  Brog- 
den,  Ante. 

Mallenders,  or  sallenders,  is  a  scurfy  eruption  at  the  bend  of 
the  knee,  or  inside  the  hock,  or  a  little  below  it ;  seldom  pro- 
duces lameness,  but,  if  neglected,  a  discharge  sets  in,  which  it  is 
difficult  to  stop  ;  it  is  classed  as  unsoundness. ^ 

Mange  is  marked  by  pimples  and  eruptions  on  the  skin,  which 
are  followed  by  blotches,  which  finally  become  scabs ;  it  is  not 
only  unsoundness,  but  is  the  most  contagious  of  all  diseases  to 
which  animals  are  liable.^ 

Navicular  joint  disease  is  caused  by  rapid,  irregular,  and 
violent  exercise,  or  from  sudden  jar  or  concussion ;  it  produces 
lameness,  which  is  seldom  cured  ;  it  is  unsoundness.^ 

Nerving  is  an  operation  upon  the  leg  of  a  horse  to  cure  an 
organic  defect,  by  depriving  the  animal  of  a  diseased  nerve, 
which  relieves  a  peculiar  pain  in  the  foot.  An  animal  which 
has  been  uerved  is  unsound."^ 

Nasal  gleet  is  a  continued  discharge  of  the  fluid  secreted  to 
lubricate  the  membranous  lining  of  the  nose  ;  it  may  be  green, 
or  straw-colored,  depending  upon  whether  his  feed  is  grass  or 
hay,  and  is  sometimes  brown,  or  even  bloody ;  it  may  last  for 
months,  and  sometimes  destroys  the  animal ;  it  is  unsoundness.^ 

Ossification  of  the  cartilages,  or  "  side  bone,"  is  an  unsound- 
ness, whether  it  produces  lameness  or  not,  as  it  is  an   organic 

1  Oliiihaut,  Law  of  Horses,  i>.  90. 

2  Ibid. 

3  "Navicular  disease"  was  described  in  Bywater  v.  Richardson,  1  A.  &:  C. 
508,  as  an  inflammation  in  a  joint  on  the  inside  of  the  hoof,  and  to  be  of  such  a 
nature  that  it  miglit  be  alleviated  by  proper  treatment,  so  far  as  to  render  a 
horse  fit  for  gentle  work,  and  to  make  him  apjiear  sound  for  a  time,  and  on  soft 
ground ;  but  could  seldom,  if  evei",  be  permanently  cured  so  as  to  qualify  him 
for  hard  work. 

^  Beat  V.  Osborne,  R.  &  M.  290.  On  the  trial,  it  was  shown  that  the  operation 
of  nerving  consisted  in  the  division  of  a  nerve  leading  from  the  foot  up  the  leg; 
that  it  was  usually  performed  in  order  to  relieve  the  horse  from  the  pain  arising 
from  a  disease  in  the  foot,  the  nerve  cut  being  the  vehicle  of  sensation  from  the 
foot ;  that  the  disease  in  the  foot  would  not  be  affected  by  the  operation ;  that 
liorses  previously  lame  from  the  pain  of  such  disease  would,  when  uerved, 
frequently  go  free  from  lameness,  and  continue  so  for  years;  but  that  the 
presumption  was  that  the  horse  could  not  endui'e  hard  work,  and  was  unsound 
after  nerving. 

5  01ix)hant's  Law  of  Horses,  p.  92. 


§  133  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  170 

defect,  which  is  liable,  at  any  time,  to  culminate  in  serious 
lameness.-^ 

Over-reaching,  clicking,  or  striking  the  hind-shoe  against  the 
fore  one,  is  not  unsoundness,  as  the  habit  does  not  impair  the 
natural  usefulness  of  the  animal,  unless  where  the  strikinir  is 
the  result  of  a  peculiar  formation  amounting  to  an  organic 
defect,  in  that  the  legs  are  too  long  for  the  body,  when  the 
animal  is  liable,  with  his  hind-feet,  to  step  on  the  heels  of  his 
fore-feet,  and  throw  himself;  in  such  cases,  striking  indicates 
such  a  malformation  as  constitutes  unsoundness.^ 

Parotid  gland  ulcerated. — This  gland  is  in  the  hollow  which 
juns  from  the  root  of  the  ear  to  the  angle  of  the  lower  jaAv.  In 
bad  strangles,  and  sometimes  'from  cold,  this  gland  will  swell 
greatly,  and  ulcerate,  and  sometimes  a  fistulous  ulcer  is  formed, 
very  difficult  to  heal.     Such  a  disease  is  an  unsoundness. 

Poll  evil. — At  the  point  of  juncture  of  the  head  and  bone 
nearest  the  skull,  an  ulcer  is  formed  by  the  horse  rubbing  and 
sometimes  striking  his  "poll"  against  the  manger,  or  by  hang- 
ing back  on  the  halter,  and  so  causing  an  abrasure,  or  by  a 
blow.  A  swelling  appears,  which  is  hot,  tender,  and  painful, 
and  after  a  time  matter  is  formed,  and  spreads  around,  and  eats 
into  the  neighboring  parts.     This  is  an  unsoundness.''^ 

Pumiced  feet. — The  sensible  and  horny  plates  of  the  foot, 
after  an  attack  of  the  rheumatism,  become  elongated  and  par- 
tially separated,  and  do  not  unite  again  readily,  and  often  lose 
their  elasticity ;  the  coffin-bone,  lacking  their  support,  presses 
on  the  sole,  which  thus  becomes  rounded  out,  or  convex,  and 
reaching  the  ground,  gets  bruised  and  sore.  This  is  "  pumiced 
feet,"  and  is  an  unsoundness. 

Paralysis  is  the  loss  of  the  use  of  any  limb,  or  function, 
through  injury  to  the  brain,  nerves,  or  muscles.  Animals  sub- 
ject to  it  are  sometimes  attacked  while  traveling  rapidly,  lose 
momentarily  the  use  of  a  limb,  and  shortly  afterward  recover 
it,  and  are  apparently  as  well  as  ever,  but  are,  nevertheless, 
unsound. 

Quittor  is  the  result  of  neglected  or  bad  over-reaching,  or  any 

1  Hanover  on  Law  of  Horses,  8&-7. 

-  Brown  v.  Elkington,  8  M.  &  "W.  132;  Dickenson  v.  FoUett,  1  M.  &  Rob.  299. 

3  Hanover  on  tlie  Law  of  Horses,  jd.  88;  Olipliant,  i).  94. 


171  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  §  133 

wound  on  the  foot.  In  the  natural  process  of  ulceration,  matter 
is  thrown  out  from  the  Avound  and  forces  the  small  plates  of  the 
coffin-bone  from  the  horny  crust  of  the  hoof,  and  sometimes  eats 
into  the  fleshy  part  of  the  foot.  These  ulcerations  form  a  kind 
of  pipes,  or  sinuses,  running  in  every  direction,  and  constitute 
the  disease  called  quittor,  which  is  an  unsoundness. 

Rat-tails,  an  excrescence  on  the  back  part  of  the  leg,  giving 
a  peculiar,  twisted  appearance  to  the  hair,  whence  is  derived 
its  name,  is  generally  harmless,  and  not  an  unsoundness. 

Kearing,  Avhen  the  habit  becomes  established,  or  is  not  due  to 
temporary  causes,  such  as  needless  pulling  at  and  laceration 
of  the  mouth,  is  an  inveterate,  bad,  dangerous  habit — is  a  vice ; 
and  the  maker  of  a  warranty  that  a  horse  is  gentle  and  free 
from  vice,  when  the  animal  has  this  habit,  should  be  held  liable. 

Ringbones  are  situate  above  the  hoof,  and  are  a  hardening  or 
ossification  of  the  cartilages  at  the  top  of  the  coronet ;  when 
visible  only  in  front  of  the  pastern  it  is  generally  of  little  con- 
sequence, but  where  it  is  near  the  heels  it  is  more  serious,  as 
there  it  impedes  the  flexibility  of  the  cartilages.  It  is  generally 
regarded  as  an  unsoundness,^  whether  it  produces  immediate 
lameness  or  not. 

Rumbling  is  not  an  unsoundness,  but  rather  a  mark  of  good 
health.2 

Roaring  takes  its  name  from  a  peculiar  sound  uttered,  when 
briskly  traveling,  by  a  horse  affected ;  it  is  caused  by  a  tough 
and  viscid  substance  thrown  out  in  the  shape  of  fluid,  and  which 
sticks  to  the  larynx  and  upper  part  of  the  wind-pipe,  materially 
obstructing  the  passage ;  the  malady  is  always  rated  unsound- 
ness if  it  proceed  from  an  organic  defect,  but  if  it  is  but  a  tem- 
porary effect  from  strangles,  or  other  usual  condition  in  a  colt, 
it  is  not  considered  so.^ 

1  Hanover  ou  the  Law  of  Horses,  p.  90;  Olipliant,  94-5. 

2  Tliis  is  frequently,  but  erroneously,  confounded  with  "washy,"  it  being 
thought  that  the  noise  is  from  water  in  the  intestines  ;  but,  in  fact,  the  noise  is 
from  the  sheath,  hence  mares  never  make  this  noise.  Horses  of  this  habit  are 
not  inconvenienced,  but  are,  for  the  most  part,  good,  round-baiTcUed  horses, 
and  sound.    (Hanover,  p.  90.) 

3  "  Roaring  or  whistling  in  horses  is  an  unsoiindness  within  the  meaning  of  the 
warranty  that  the  animal  is  soiind  in  every  resiiect."  (Southard  v.  Haywood 
et  al.  Supreme  Court  Penn.  Nov.  19th,  1874. ) 

"There  was  ample  evidence  that  roaring  or  whistling  in  horses  is  a  disease 
arising  from  the  state  of  the  wind-pipe  or  air-passages.     The  Court  submitted 


§  133  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  172 

Running  away,  or  bolting,  is  decidedly  a  vice,  and,  when  the 
habit  becomes  confirmed,  renders  the  horse  dangerous  and  Avith- 
out  value. 

Saddle-galls  may  or  may  not  be  unsoundness  :  if  not  of  a 
nature  to  impede  the  use  of  the  animal,  or  of  a  slight,  tempo- 
rary character,  they  are  not  so ;  but  if  of  long  standing,  and 
worked  deep  into  the  back,  they  make  a  very  bad  sore,  M^orse 
sometimes  than  "  poll  evil,"  Avhen  they  become  "  sit-f  asts,"  and 
are  an  unsoundness.^ 

Rheumatism  can  only  be  discovered  when  the  horse  is  pal- 
pably lame,  when,  of  course,  he  is  unsound ;  and  so,  when  it 
can  be  proved  that,  within  a  reasonable  length  of  time  before 
the  purchase,  the  animal  was  lame  from  this  cause,  he  may  be 
returned  under  a  general  Avarranty  of  soundness  ;  so,  too,  Avhere 
the  disease  is  chronic.^ 

vSallenders  constitute  unsoundness.  (See  mallenders.)  When 
the  fore-lco;  is  affected  it  is  mallenders,  and  sallenders  Avhen  in 
the  hind-leg. 

Sand-crack  is  a  crack  or  division  of  the  hoof  doAvuAvards ;  it 
generally  indicates  brittleness  of  the  crust,  Avhich  is  sometimes 
natural,  but  more  often  the  result  of  mismanagement  or  disease, 
particvdarly  of  "false  quarter." 

Sand-crack  is  unsoundness ;  but,  as  in  the  case  of  a  curb,  if 
a  horse,  AA-ithout  any  previous  indication  of  prcA-iously  having 
had  the  disease,  throAv  out  a  sand-crack  immediately  after  the 
sale,  it  is  no  breach  of  a  Avarranty  of  soundness.^ 

the  fact  of  its  existence  in  the  horse  to  the  jury;  and  if  so,  tlien  instructed  them 
that  it  was  an  unsoiindness  Avithin  the  scope  of  the  warranty.  Tliis  was  the 
meaning  and  effect  of  that  portion  of  the  charge  assigned  for  error.  We  dis- 
coA-er  no  error  in  the  instruction.  The  Court  did  not  undertake  to  pass  on  the 
disease  as  a  fact."  (Ibid:  Story  on  Sales,  Sec.  302;  Bassett  v.  Collins,  2  Campb. 
523;  Onslow  v..  Earaes,  2  Stark.  N.  P.  C.  81.) 

1  In  Kiddell  v.  Barnard,  9  W.  &  M.  G70. 

"  Couch  V.  Cvilbreth,  11  Rich.  (Law)  9.  In  this  case,  it  was  held  that,  in  ques- 
tions of  imsoundness,  where  the  disease  is  chronic,  like  rheumatism,  it  is  not 
necessary  to  show  that  the  symptoms  exi.sted  at  tlie  time  of  the  sale,  for  subse- 
quent incidents  and  appearances  may  show  that  the  disease  existed  before  the 
sale,  althougli  the  symptoms  had  not  then  been  obserA'ed.  As  to  what  constitutes 
"  organic  disease,"  and  its  presence,  this  case  Avill  repay  perusal,  but  a  medical 
treatise  is  not  AA'itliin  the  scope  of  this  work.  It  is  always  for  the  jury  to  de- 
termine whether  such  a  disease  affects  the  animal  to  an  extent  sulHcient  to 
impair  his  natural  usefulness. 

3  Oliphant's  Law  of  Horses,  p.  1)8. 


173  WARRANTY    OF    SOUNDNESS    OF    ANIMALS.  §  133 

Shying  is  a  habit  not  affecting  the  question  of  soundness,  but 
coming  undei*  consideration  upon  a  wam'anty  that  the  horse  is 
free  from  vice.  Generally,  it  is  the  result  of  cowardice,  want 
of  work,  or  playfulness,  and  not  unfrequently  from  recollection 
of  ill  usage,  as  when  the  animal  shies  on  coming  from  the  stable. 
When  the  habit  becomes  confirmed  it  is  a  vice,  and  one  replete 
with  danger. 

Shying  sometimes  results  from  defective  sight,  when  it  be- 
comes unsoundness.^ 

Sidebones  is  the  same  disease  as  ossification  of  the  cartilage. 
A  lameness  ensues,  which  may  disappear  with  rest  and  care,  but 
any  quick  work,  or  fast  travel  on  a  hard  road,  will  bring  it  back. 
It  is  an  unsoundness,  whether  it  produces  lameness  or  not. 

Spavin  is  an  unsoundness.     (See  bone,  blood,  and  bog  spavin.) 

Speedy-cut  is  where,  at  high  speed,  the  horse  strikes  on  the 

inside  of  the  leg,  immediately  under  the  knee,  and  thence  to  the 

head  of    the  inner  splint-bone ;   this  is  the  result  of  defective 

shape,  and  hence  is  not  an  unsoundness. 

A  splint,  like  a  bone  spavin,  is  an  excrescence,  or  bony  de- 
posit on  the  horse's  leg ;  lameness  therefrom  is  caused  by  pre- 
venting the  proper  flexion  of  the  joint.  The  position  of  the 
splint  determines  whether  or  not  it  constitutes  unsoundness ; 
if  not  in  the  neighborhood  of  any  joint,  so  as  to  interfere  Avith 
its  action,  and  if  it  does  not  press  on  any  tendon  or  ligament,  it 
is  no  unsoundness ;  but  the  splint  which  is  where  it  does  inter- 
fere with  the  proper  movement  of  the  joint,  tendon,  or  liga- 
ment, is  unsoundness.^ 

Sprain  and  thickening  of  the  back  sinews  is  where,  from  over 
work,  the  tendons  of  the  back  press  over  much  on  the  deli- 
cate lining  of  the  sheath,  or  cover  of  the  tendon,  and  thence 
ensues  inflammation,  and  coagulations  are  formed  between  the 
tendon  and  sheath.  A  slight  strain  of  this  character  is  called 
sprain  of  the  back  sinews  or  tendons,  and  when  more  serious  it 

1  Holliday  v.  Morgan,  28  L.  J.  Q.  B.  9;  2  Olipliant's  Law  of  Horses,  p.  100. 

2  Margetson  u.  Wright,  1  M.  &  W.  622.  The  Court  says:  "It  now  appears 
that  some  splints  cause  lameness  and  others  do  not,  and  that  the  consequences 
of  a  splint  cannot  be  apparent  at  the  tdme.  like  the  loss  of  an  eye,  or  any  other 
blemish  or  defect  visible  to  a  common  observer.  We  therefore  think  that,  by 
the  terms  of  this  written  warranty,  the  parties  meant  that  this  was  not,  at  that 
time,  a  splint  which  would  be  the  cause  of  future  lameness,  and  that  the  jury 
have  found  that  it  was.    We  therefore  think  that  the  warranty  was  broken." 


§  133  ^YAREA^rTY  of  soundness  or  animals.  174 

is  said  that  tlic  horse  has  broken  down.  Either  is  an  unsound- 
ness, as  an  alteration  of  structure  has  occurred  which  must  im- 
pair the  natural  usefulness  of  the  horse. 

Star-gazing,  and  its  inseparable  defect,  called  ewe-necked,  are 
natural  defects  in  the  formation,  and  hence  are  neither  unsound- 
ness nor  vice. 

Strangles,  although  sometimes  confounded  with  glanders,  is 
very  different  from  it ;  it  is  but  a  natural  condition  for  young 
horses,  and  is  no  unsoundness,  save  when  the  animal  is  sick  with  it. 

String-halt  is  a  peculiar  movement  of  the  hind-leg,  o\ving  to 
irregular  nervous  action  ;  it  wears  off  with  exercise,  and  is  gen- 
erally characteristic  of  high-bred  animals.  IMuch  difference  of 
opinion  has  prevailed  on  the  question  of  whether  or  not  it  was 
unsoundness,  but  the  later  English  authorities  decided  it  to  be 
so.^ 

Thickwind  is  shown  ])y  short,  frequent,  and  labored  breath- 
ing when  in  rapid  motion.  It  frequently  is  observable  in  round- 
chested,  fat  horses ;  heavily  built  horses  generally  show  it,  and 
it  is  especially  to  be  observed  in  horses  unused  to  violent  exer- 
tion on  a  full  stomach.  The  chief  cause  is,  however,  previous 
inflammation  of  the  bronchial  passages ;  it  is  often  the  fore- 
runner of  broken  wind,  and  when  it  proceeds  from  inflamma- 
tion it  is  an  unsoundness.^ 

Thin  soles  are  not  necessarily  an  unsoundness,  and  they  must 
be  shown  to  have  produced  lameness  to  be  so  regarded.^ 

Thrush  is  the  inflammation  of  the  lower  surface  of  the  inner 
or  sensitive  frog ;  if  neglected,  it  leads  to  a  diminution  of  the 
substance  of  the  frog,  and  this  may  be  followed  by  a  separation 
of  the  horny  part  of  the  hoof  from  the  parts  beneath,  and  the 
production  of  fungus  and  cancer,  and  ultimately  the  result  is  a 
diseased  condition  of  the  hoof,  destructive  of  the  present  and 
dano:erous  to  the  future  usefulness  of  the  horse.  A  thrush  is 
an  unsoundness. 

1  Thompson  v.  Patterson,  Oliphant,  102. 

2  Oliphant's  Law  of  Horses,  104. 

3  Bailey  v.  Forrest,  2  C.  &  K.  131,  ATliicli  is  put  on  the  ground  of  Brc^vni  ti.  El- 
kington,  in  which  it  was  held  that  "curby  hocks,"  not  producing  lameness  at 
the  time  of  sale,  were  not  a  breach  of  warranty  of  soundness,  though  a  curb 
was  afterward  thrown  out;  and  from  this  case  the  Court  says  :  "This  case 
shows  that  the  mere  fact  of  the  horse  in  question  being  thin-soled  at  the  time 
of  sale  is  not  sufQcient  to  constitute  a  breach  of  warranty  of  soundness." 


175  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  §  133 

Tripping  is  a  habit,  not  an  unsoundness — not  necessarily  a 
vice,  as  it  generally  is  a  habit  resulting  from  malformation,  in 
that  the  fore-legs  are  too  much  under  the  horse. 

Vicious  horses,  in  that  they  are  hard  and  mean  to  groom,  are 
generally  so  from  having  been  ill  treated,  or  from  their  being 
tender-skinned  to  a  degree  that  makes  them  irritable.  This  may 
be  overcome  by  kindness  ;  but,  so  long  as  it  exists  to  such  a  de- 
gree as  to  make  the  horse  dangerous,  it  is  a  vice. 

The  same  reasoning  is  applicable  to  horses  vicious  to  shoe, 
except  that  this  is  more  rare ;  but  if  it  is  dangerous  to  shoe  a 
horse,  he  is  "  not  free  from  vice." 

Weak-foot  is  caused  by  disease,  as  a  rule,  although  it  is  some- 
times the  result  of  a  natural  malformation  of  the  foot.  Horses 
subject  to  this  weakness  can  never  stand  much  hard  work  ;  they 
will  be  subject  to  corns,  bruises,  convexity  of  the  soles,  and 
breaking  away  of  the  crust. 

When  it  is  the  result  of  malformation,  it  Is  not  unsoundness ; 
when  caused  by  disease,  it  is. 

Weaving  is  a  bad  habit,  and  is  rated  a  vice  when  it  either  in- 
jures a  horse's  health  or  makes  him  dangerous. 

A  wheezer  is  not  unlike  a  person  affected  by  asthma.  It  is  a 
kind  of  thick  wind,  caused  by  the  lodgment  of  some  mucous 
fluid  in  the  small  passages  of  the  lungs.  Wheezing  is  heard 
constantly,  and  therein  differs  from  roaring,  which  is  confined 
to  the  increased  breathing  during  considerable  exertion.  Wheez- 
ing is  unsoundness.^ 

Whistling  is  much  the  same  as  wheezing,  but  in  that  the 
sound  is  more  shrill,  and  is  heard  only  when  the  horse  is  in  mo- 
tion ;  it  appears  to  be  ref errible  to  some  contraction  in  the  wind- 
pipe or  larynx  ;  it  is  rated  an  unsoundness.^ 

Washy  is  a  term  applied  to  a  horse  when  the  least  exertion 
produces  in  him  purging,  looseness,  etc.,  the  cause  being  irrita- 
tion of  the  intestines ;  such  a  horse  can  do  but  little  work,  and 
is  classed  as  unsound.^ 

Wind-galls. — But  few  horses  are  quite  free  from  these,  but 
they  only  produce  lameness  when  numerous  or  unusually  large. 

1  Oliphant's  Law  of  Horses,  106.  -  Ibid ;  Hanover  on  Law  of  Horse,  98. 

3  Anslow  V.  Eames,  2  Stark.  N.  P.  C.  81. 


§  133  WARRANTY    OF    SOUNDNESS    OF   ANIMALS.  176 

Like  thorouglipin,  they  are  not  unsoundness  unless  lameness  is 
caused  by  them,  or  when  they  are  so  large  and  numerous  as  to 
indicate  that  lameness  will  probably  result  from  them.^ 

Wolf's  teeth  is  but  a  temporary  malady,  generally  easy  to 
cure  by  drawing  the  tooth,  and  is  only  unsoundness  while  the 
extra  tooth  makes  the  mouth  sore. 

Yellows,  or  jaundice,  is  a  bilious  malady,  generally  caused  by 
an  obstruction  of  the  ducts  or  tubes  which  convey  the  bile  from 
the  liver  to  the  intestines.  While  the  illness  lasts,  it  is  an  un- 
soundness. 

1  Hanover,  p.  98;  Stuart  v.  Wilkins,  Doug,  18. 


177  THE    LAW   AS   TO    HORSES.  §§  134-5 


CHAPTER  XI. 

THE  LAAV  AS  TO  HORSES. 

^  134.  Legal  ethics  as  to  horses. 

§  135.  Horse-breakers  and  trainers,  their  duties  and  rights. 

§  136.  Care  and  skill  required  of  horse-breaker  or  trainer. 

?  137.  Lien  of  horse-breakers  and  trainers. 

§  138.  Lien  of  "stander"  of  stallions. 

§  139.  Veterinary  surgeons,  their  duties  and  rights. 

§  140.  Malpractice  by  veterinary  surgeons. 

§  141.  The  veterinary  surgeon  has  a  lien. 

§  143.  Farriers,  their  rights  and  liabilities. 

§  143.  Lien  of  a  farrier. 

§  134.  Legal  ethics  as  to  horses. — Because  of  the  high 
place,  among  domestic  animals,  Avliich  the  horse  deservedly 
holds  in  man's  esteem,  the  manifold  uses  to  Avhich  he  is  applied, 
and  his  value  as  property,  it  has  naturally  occurred  that,  in  re- 
garding the  subjects  of  hire,  lending,  sale,  warranty,  soundness, 
etc.,  of  animals  generally,  the  horse  has  occupied  a  prominent 
position,  and  hence,  so  far  as  the  topics  already  commented  upon 
are  concerned,  but  little,  if  anything,  remains  to  be  considered 
as  specially  referring  to  horses  ;  but  there  are  some  matters  of 
legal  study  and  reasoning,  Avhich,  to  a  greater  or  less  extent,  are 
peculiar  and  especial  to  them,  and  the  business  relation  of  men 
to  one  another  in  matters  pertaining  to  these  animals. 

§  135.  Horse-breakers  and  trainers,  their  duties  and 
rights. — Horse-breakers  and  trainers,  in  the  matters  pertaining 
to  their  avocation,  and  those  persons  who  employ  them  therein, 
are  subject  to  the  general  rules  which  govern  the  hire  of  labor 
and  services,  unless,  by  contract,  the  parties  bind  themselves  by 
special  agreements;  audit  is  only  in  the  absence  of  express  stip- 
ulations that  laws  of  general  application  take  effect  and  furnish 
the  terms  of  the  contract  by  implication. 
Farm— 12. 


§  136  THE    LAW   AS    TO    HORSES.  178 

On  the  part  of  the  person  Avho  employs  the  trainer  to  break 
his  horse,  or  train  it  for  service,  the  general  duties  imposed  on 
him  by  law,  and  which,  in  the  absence  of  express  stipulations  to 
the  contrary,  he  is  presumed  to  have  agreed  to,  are :  1st.  To  do 
everything,  on  his  part,  to  enable  the  workman  to  accomplish 
the  object  had  in  view ;  2d.  To  hide  no  defects,  peculiarities  of 
temperament,  or  any  circumstance  which  would  render  the  task 
imposed  and  accepted  peculiarly  difficult  or  dangerous ;  3d.  To 
accept  the  animal  when  duly  broken  or  trained  as  stipulated ; 
to  conform  to  the  terms  of  his  contract,  and  pay  the  price  agreed 
upon,  or,  if  none  had  been  settled,  a  fair  remuneration.^ 

The  person  who  contracts  to  break  or  train  the  animal  is 
bound  to  exercise  due  and  proper  care  of  him,  must  answer 
for  ordinary  neglect  of  the  horse,  and  apply  a  degree  of  skill 
equal  to  his  undertaking. 

Every  man  who  assumes  a  task  wherein  is  required  peculiar 
skill  or  learning,  stipulates  that  he  possesses  those  qualifications ; 
the  law  implies  a  contract,  on  his  part,  that  he  can  and  will  per- 
form the  service  skillfully;  his  relation  to  the  employer  is  one  of 
confidence  reposed  in  him,  based  upon  the  belief  that  he  is  com- 
petent to  perform  the  designated  service  ;  and  if  he  is  not  com- 
petent, or  fails  to  properly  apply  his  skill  or  learning,  he  be- 
comes responsible  for  damages  which  may  ensue  by  his  breach 
of  the  contract.^ 

§  136.  The  care  and  skill  required  of  a  trainer  or  horse- 
breaker. — What  degree  of  care,  skill,  or  diligence  the  breaker  or 
trainer  is  bound  to  exercise,  depends  upon  the  circumstances  of 
the  case,  and  the  purpose  contemplated  by  the  parties  in  mak- 
ing the  contract. 

As  to  the  care  of  the  animal,  the  general  rule  of  bailments 
ffoverns.  When  the  bailment  is  for  the  sole  benefit  of  the  bailor, 
the  law  requires  only  slight  diligence  on  the  part  of  the  bailee, 
and  makes  him  answerable  only  for  gross  neglect.     When  the 

1  Story  on  Bailments,  Sec.  425. 

2  Howard  v.  Grover,  28  Me.  97 ;  Eogers  v.  Grothe,  58  Penn.  414 ;  Stanton  &  Little 
V.  Bell  &  Joiner,  2  Hawks.  145;  2  Kent's  Com.  588.  "Every  man  is  presumed  to 
possess  the  ordinary  skill  requisite  to  the  dxie  exercise  of  the  art  or  trade  which 
he  assumes.  If  he  performs  the  work  unskillfully,  he  becomes  responsible  in 
damages."    (Eitchey  v.  West,  23  HI.  385;  McNevins  v.  Low,  40  111.  210.) 

J 


179  THE    LAW   AS    TO    HORSES.  §  137 

bailee  alone  is  to  be  benefited,  he  is  bound  to  exercise  extraor- 
dinary care,  and  is  responsible  for  slight  neglect.  When  the 
bailment  is  reciprocally  beneficial,  and  both  parties  are  to  derive 
advantage,  the  law  requires  ordinary  diligence,  and  makes  the 
bailee  responsible  for  ordinary  negligence. 

This  contract  for  breaking  or  training  a  horse,  being  of  mu- 
tual benefit,  the  bailee  is  not  answerable  for  slight  neglect,  nor 
for  a  loss  of  or  injury  to  the  animal  while  in  his  charge,  by  rea- 
son of  inevitable  accident,  irresistible  force,  theft,  or  from  any 
inherent  disease,  fault,  or  vice  of  the  horse  itself.^ 

5  137.   As  to  the  lien  of  a  horse-breaker  or  trainer  on 

the  animal  for  his  fees,  there  appears  to  be  some  conflict  of 
authorities.  By  an  early  English  case,  it  is  held  that  he  has 
such  a  lien  for  his  fees  and  charges  on  the  express  or  implied 
contract ;  by  his  skill  the  horse  is  rendered  valuable,  and 
changed  from  a  source  of  expense,  without  return,  into  property 
of  value ;  to  his  services  may  be  ascribed  the  value  of  the  prop- 
erty ;  his  lien  for  compensation  is  consistent  with  the  principles 
of  natural  equity,  and  is  favored  by  the  law,  Avhieh,  in  such 
cases,  is  construed  liberally.^  But  this  reasoning  seems  to  have 
been  departed  from,  and  the  rule  remains  in  a  somewhat  unsettled 
condition. 

For  a  considerable  space  of  time,  doubts  were  entertained  as 
to  whether  a  lien  existed  in  favor  of  a  trainer,  for  his  services 
and  cost  of  keeping  a  race-horse  intrusted  to  him  for  training. 
In  the  earlier  cases,  some  distinctions,  in  appearance  more  tech- 
nical than  meritorious,  were  indulged  in,  and  it  was  questioned 
whether  the  trainer  had  such  a  lien,  unless  the  horse  was  to  be 
trained  for  some  special  race. 

The  difliculty  in  establishing  the  rule  that  a  horse-breaker  or 
trainer  had,  for  his  services,  a  lien  on  the  animal,  appears  to 
have  occurred  in  considering  the  question  of  what  peculiar 
value  the  trainer  had  imparted  to  the  animal. 

1 2  Kent's  Com.  588 ;  Story  on  Bailments,  437 ;  Jones  on  Bailments,  88,  89, 119, 120. 

2  Scarf  e  v.  INIorgan,  4  ]\I.  &  W.  268.  ' '  The  artificer,  to  -whom  goods  are  delivered, 
for  tlie  j)urpose  of  being  worked  up  into  form ;  or  the  farrier,  by  whose  skill  the 
animal  is  cured  of  a  disease ;  or  the  horse-breaker,  by  whose  skill  he  is  rendered 
manageable,  have  liens  on  the  chattels  in  respect  of  their  charges ;  all  such  spe- 
cific liens,  being  consistent  with  the  principles  of  natural  equity,  are  favored  by 
the  law,  which  is  construed  liberally  in  such  cases." 


§  137  THE    LAW    AS    TO    TIOESES.  180 

The  proposition  Avas  conceded  to  be  coiTCct,  that  the  bailee, 
who,  by  his  labor  or  skill,  renders  especially  valuable  the  chattel 
confided  to  him  for  that  purpose,  has  upon  the  chattel  a  lien  for 
his  2:)ay ;  but  it  was  thought  that  the  horse-breaker  or  trainer 
who  received  a  horse  to  break  or  train,  generally,  and  without 
special  reference  to  some  race  for  which  he  was  to  prepare  the 
animal,  did  not  receive  him  for  a  purpose  sufficiently  definite  to 
give  him  the  benefit  of  the  rule,  while,  if  he  receive  the  animal 
to  fit  for  a  certain  race,  his  services  have  a  definite  end,  and  the 
rule  applied.^ 

The  later  English  cases,  while  they  recognize  the  proposition 
that  the  lien-holder  may  lose  his  lien  by  parting  with  the  pos- 
session of  the  animal,  declare  the  general  law  to  be  in  ac- 
cordance with  the  views  given  in  Bevan  v.  Waters,  namely, 
that  the  care  and  skill  employed  by  a  trainer  upon  a  race- 
horse are  of  such  a  nature  as  would,  on  general  principles,  give 
a  right  of  lien  ;  that,  according  to  the  general  principles  of  lieu, 
and  independently  of  contract  or  usage,  which  may  qualify  any 
particular  case,  a  trainer  of  race-horses  employs  that  sort  of 
skill  and  labor  which  would  entitle  him  to  a  lien,  because  he 

iln  Jackson  v.  Cummins,  5  M.  &  "W.  342,  the  true  issue  was  as  to  a  lien 
claimed  by  an  agistor  of  cows,  but  the  Court,  (by  Parke,  B.)  in  the  decision,  and 
by  way  of  illustration,  says:  "  The  general  rule  is  that,  in  the  absence  of  any 
special  agreement,  whenever  a  party  has  expended  labor  and  skill  in  the  im- 
provement of  a  chattel  bailed  to  him,  he  has  a  lien  upon  it."  Further,  in  the 
same  opinion,  occurs  this  language :  "As  to  the  case  of  a  training-groom,  it  is 
not  necessary  to  say  anything,  as  it  has  not  been  formally  decided;  for,  in 
Jacobs  V.  Latour,  5  Bing.  130,  the  point  was  left  undetermined.  It  is  true,  there 
is  a  nisiprivs  decision  of  Best,  C.  J.,  in  Bevan  v.  Waters,  that  the  trainer  would 
have  a  lien,  on  the  ground  of  his  having  expended  labor  and  skill  in  bringing 
the  animal  into  condition  to  run  at  races ;  Init  it  does  not  appear  to  have  been 
present  to  the  mind  of  the  judge,  nor  was  the  usage  to  that  effect  explained 
to  him,  that  when  horses  are  delivered  for  that  purpose,  the  owner  has  always 
a  right,  during  the  continuance  of  the  process,  to  take  the  animal  away  for  the 
j)urpose  of  running  races  for  plates,  elsewhere. 

"The  right  of  lien,  therefore,  must  be  subservient  to  this  general  right,  which 
over-rides  it;  so  that  I  doubt  if  that  doctrine  would  apply  where  the  animal  was 
a  race-horse."  "I  doubt  if  it  extends  to  the  case  of  a  race-horse,  unless,  per- 
haps, he  was  delivered  to  the  gi'oom  to  be  trained  for  the  purpose  of  running  a 
specified  race." 

In  the  case  at  nisi  2)rius,  Bevan  v.  "Waters,  mentioned  above,  it  was  held,  on 
the  principles  of  the  common  law,  that  where  the  bailee  expends  labor  and  skill 
in  the  improvement  of  the  subject  delivered  to  him,  he  has  a  lien  for  his  charge; 
that  the  trainer  has  a  lien  for  the  expense  and  skUl  bestowed  in  bringing  the 
horse  into  condition  to  run  at  races. 


181  THE    LAW   AS    TO    HORSES.  §  138 

educates  an  untaught  animal  and  otherwise  adapts  it  to  a  par- 
ticular purpose,  and  thereby  greatly  increases  its  value.^ 

The  Courts  of  the  United  States,  while  they  do  not  appear 
to  have  had  occasion  to  make  application  of  the  principle 
involved  to  the  matter  of  the  rights  of  trainers  of  horses,  con- 
cur with  the  English  authorities  in  the  general  proposition  that 
a  lien  belongs,  in  general,  to  every  bailee  for  hire  whose  serv- 
ices have  contributed  to  enhance  the  value  of  the  property 
placed  in  his  hands.^ 

A  continuing  right  of  possession  of  the  animal  is  requisite 
to  completely  invest  the  trainer  with  the  character  of  a  lien- 
holder,  and  whether  there  is  such  a  right  of  possession  in  any 
case  depends  on  the  nature  of  the  particular  contract  or  the 
custom  which,  is  applicable  to  the  subject-matter.  Where  it 
appears  that  the  owner  of  the  animal  has  a  present  right  to  the 
possession  of  it,  as  if  he  has  the  right  to  send  a  jockey  to  take 
from  the  trainer  the  horse  to  run  in  a  race — if  he  may,  at  pleas- 
ure, employ  him  in  any  way,  by  giving  his  use  to  another,  or 
taking  it  himself — such  a  condition  of  things  is  inconsistent 
with  a  lien  in  favor  of  the  trainer.^ 

§  138.   The  owner  of  a  stallion  has  a  lien  on  the  mare. 

— The  owner  of  a  stallion  also  is  entitled  to  a  specific  lien  on 
the  mare ;  the  principle  involved  is  as  in  the  case  of  the  trainei', 
who  adds  to  the  value  of  the  animal ;  the  veterinary  surgeon,  by 

1  Forth  V.  Simpson,  13  Q.  B.  Adol.  &  ElUs,  iST.  S.  682-4. 

2Pinney  v.  AVells,  10  Conn.  105,  115;  Hutchings  v.  Oliver,  4  Verm.  549,  551; 
Stoddart  M.  Co.  v.  Huntley,  8  N.  H.  441;  Hogden  i-.  Waldron,  9  Id.  GG;  IMoorew. 
Hitchcock,  4  Wend.  292;  Mount  v.  Williams.  In  Grinnell  v.  Cook,  3  Hill's  N.Y. 
491,  the  cases  of  Jackson  v.  Cummings,  and  Scarfe  r.  jSIorgan,  4  M.  &  W.  270, 
are  approved  of :  it  is  declared  to  he  a  general  rule  that  every  bailee  for  hire, 
whose  labors  have  imparted  additional  value  to  chattels,  has  a  specific  lien. 

3  Forth  V.  Simpson,  13  Adol.  &  Ellis,  684;  Rogers  v.  Grothe,  58  Penn.  414;  2 
Kent's  Com.  887;  Cardinal  r.  Edwards,  5  Nevada,  36.  In  Nevada,  a  special  stat- 
ute gives  to  agistors,  stable-keepers,  and  others  a  lien  on,  and  right  to  detain 
until  the  bill  is  paid,  animals  left  with  them  to  pasture  or  feed.  A  stable- 
keeper  took  a  team  of  six  work-horses  to  board— the  team  was  used  in  hauling 
wood ;  the  owner,  after  using  them  one  day,  as  usual,  failed  to  return  them  to 
the  stable ;  the  stable-keeper  claimed  a  lien  on  them  for  his  feed-bill.  It  was 
held  that,  thoiigh  he  might,  under  the  statute,  have  retained  them  in  his  pos- 
session, and  insisted  on  his  lien,  yet,  having  allowed  them  to  be  driven  away, 
he  relinquished  possession,  and  thereby  lost  his  lien.  "  A  voluntary  relinquish- 
ment or  surrender  of  possession  always  destroys  the  lien." 


§  139  THE    LAW   AS    TO    HORSES.  182 

whose  skill  it  is  cured  of  a  disease ;  these  have  liens  on  the  ani- 
mal in  respect  of  their  charges ;  such  liens,  being  consistent 
with  the  principles  of  natural  equity,  are  favored  by  the  law, 
and  the  law  is  liberally  construed  in  such  cases. 

This,  then,  being  the  principle  involved,  it  is  clear  that  the 
matter  under  consideration  is  within  the  rule.  The  object  is 
that  the  mare  may  be  made  more  valuable  by  being  got  with  foal. 
She  is  delivered  to  the  "  stander  of  the  stallion,"  that,  by  the 
use  of  his  horse,  she  may  be  made  so.  If  the  horse  be  known 
by  his  owner  to  be  vicious,  and  by  his  vice  the  mare  be  injured, 
or  should  it  occur  that,  through  want  of  peculiar  care  or  lack 
of  skill  on  the  part  of  him  who  "  stands  "  the  stallion,  an  injury 
to  the  mare  occurs,  the  bailee  is  responsible.  And  there  is  such 
a  general  resemblance  in  effect,  in  the  results  anticipated  on 
both  sides,  between  this  business  of  keeping  a  stallion  for  hire 
and  those  other  occupations  above  mentioned,  in  which  a  lien 
for  remuneration  exists,  that  it  results,  reasoning  by  analogy, 
that  there  must  be  such  a  lien  in  favor  of  the  owner  of  the 
stallion.^ 

§  139.  Veterinary  surgeons  have  much  the  same  respon- 
sibilities and  advantages  in  the  business  of  their  vocation  as  do 

1  Hanover  on  the  Law  of  Horse,  213;  Oliphant's  Law  of  Horses,  240;  Scarf e  v. 
Morgan,  4  Mees.  &  "Wels.  283.  This  case  was  trover  for  a  mare  which  had  been 
sent,  on  more  than  one  occasion,  to  tlie  jiremises  of  defendant,  who  was  a 
farmer,  to  be  covered  by  a  stallion  belonging  to  him,  and  the  charge  of  eleven 
shillings,  for  the  last  occasion,  not  having  been  paid,  the  defendant  refused,  on 
demand,  to  deliver  up  the  mare,  claiming  a  lien  for  the  eleven  shillings. 

It  was  held  that  the  defendant,  to  whom  belonged  the  stallion,  was  entitled  to 
retain  the  mare,  and  had  a  specific  lien  on  her  for  the  charge  of  covering. 

The  Court  (per  Parke,  B. )  says  :  "The  case  is  new  in  its  circumstances,  but 
must  be  governed  by  tliose  principles  which  are  to  be  collected  from  other  cases 
in  our  books.  The  principle  seems  to  be  well  laid  down  in  Bevan  r.  Waters,  that, 
where  a  bailee  has  expended  his  labor  and  skill  in  the  improvement  of  a  chattel 
delivered  to  him,  he  has  a  lien  for  his  charge  in  that  respect.  Thus,  the  artificer 
to  whom  the  goods  are  delivered  for  tlie  purpose  of  being  worked  up  into  form, 
or  the  farrier  by  whose  skill  the  animal  is  cured  of  a  disease,  or  the  horse- 
breaker  by  whose  skill  he  is  rendered  manageable,  have  liens  on  the  chattels  in 
respect  of  their  charges.  This,  then,  being  the  principle,  let  us  see  whether  tliis 
case  falls  within  it;  and  we  think  it  does.  The  object  is  that  the  mare  may  be 
made  more  valuable  by  proving  in  foal.  She  is  delivered  to  the  defendant,  that 
she,  by  his  skill  and  labor,  and  the  use  of  his  stallion  for  tliat  object,  be  made 
so;  and  we  think,  therefore,  that  is  a  case  which  falls  within  the  principle  of 
those  cited  in  argument." 


183  THE    LAW   AS    TO    HORSES.  §  140 

trainers  of  horses.  They  occupy  a  5'wasi-professional  position 
in  the  community,  and,  in  England,  are  educated  to  its  duties. 

The  Royal  College  of  Veterinary  Surgeons  was  founded  in 
1791,  and  regularly  incorporated  in  1845.  By  its  charter,  vet- 
erinary surgery  is  constituted  a  profession,  and  the  registered 
members  of  its  body  are  alone  to  be  recognized  as  members  of 
that  profession,  diplomas  being  granted,  upon  due  examination, 
after  an  appropriate  educational  course. 

One  who  holds  himself  out  to  the  public  as  a  veterinary  sur- 
geon, and  publicly  offers  his  services  in  that  behalf,  thus  taking 
upon  himself  a  public  employment,  is,  in  the  line  of  his  busi- 
ness, bound  to  serve  the  public  as  far  as  his  employment  goes, 
or  an  action  lies  against  him  for  refusing.^ 

§  140.   Malpractice  against  veterinary  surgeons. — The 

veterinary  surgeon  may  render  himself  liable  for  malpractice ; 
the  value  of  the  health  or  life  of  the  subjects  he  is  called  upon 
to  treat  may  be  less  than  that  of  the  surgeon  or  physician  who 
deals  with  the  ailments  of  human  beings,  but,  to  the  relative 
extent  of  the  dignity  and  importance  of  their  positions  in  the 
body  politic,  their  several  responsibilities  are  alike. 

Where  a  person  holds  himself  out  as  being  skilled  in  a  cer- 
tain line  of  business,  as  one  competent  to  care  for  sick  or 
injured  animals,  and  he  is  called  upon  for  the  performance  of 
services  in  that  line  of  business,  the  law  implies  a  contract  on 
his  part ;  not  that  he  will  certaijily  effect  a  cure,  but  that  he  can, 
and  will,  use  all  known  and  reasonable  means  to  accomplish  that 
object ;  that  he  will  attend  the  animal  carefully  and  diligently, 
and  will  employ,  in  its  treatment,  such  reasonable  skill  and 
diligence  as  are  ordinarily  exerci.sed  in  his  vocation  by  persons 

1  Hanover  on  Horse,  214  ;  Lane  v.  Cotton,  1  Salk.  18.  Tliis  is  an  old  Englisli 
case,  which  seems  to  have  become,  by  common  consent,  the  leading  authority  in 
the  premises,  although,  on  examination,  it  presents  but  little  to  entitle  it  to  the 
prominence  to  which  it  has  attained.  It  is  an  action  against  a  postmaster  for 
loss  resulting  from  a  letter  having  been  feloniously  abstracted.  Tn  the  opinion 
occurs  this  sentence  :  "Also,  when  a  man  takes  upon  himself  a  public  employ- 
ment, he  is  bound  to  serve  the  public  as  far  as  his  employment  goes,  or  an  ac- 
tion lies  against  him  for  refusing.  Thus,  if  a  farrier  refuses  to  shoe  a  horse,  an 
innkeeper  to  receive  a  guest,  a  carrier  to  carry,  when  they  may  do  it,  an  action 
lies;  their  undertaking  is  in  proiiortion  to  their  power  and  convenience."  (Hare 
V.  Reese,  7  Phi).  138;  Carpenter  v.  Blake,  CO  Barb.  488.) 


§  141  THE    LAW   AS   TO    HOKSES.  184 

made  competent  in  that  behalf  by  experience  and  study.  For 
a  breach  of  this  contract  he  is  liable  in  damages  to  such  an  extent 
as  may  result  therefrom ;  the  measure  of  damage  is,  generally, 
to  be  ascertained  by  the  jury ;  on  the  issue  of  lack  of  skill,  in 
case  the  person,  who  claims  to  have  suffered  therefrom,  has  the 
afiii-mative,  and  no  presumption  of  the  absence  of  proper  skill 
and  attention  arises  from  the  mere  fact  that  a  cure  is  not  ef- 
fectcd.i 

The  right  to  be  paid  for  his  services — unless  an  express 
contract  is  made  to  that  effect — does  not  depend  on  the  success- 
ful treatment  of  the  case  by  the  horse-doctor ;  and,  on  the  other 
hand,  in  an  action  for  damages  for  malpractice,  it  woidd  not 
avail  the  veterinary  surgeon  to  show  that  he  has  not  asked  any 
pay  for  his  services  ;  he  is  liable  to  the  injured  party  for  damage 
caused  by  want  of  due  care  and  skill  in  performing  services 
which  he  gratuitously  promises  to  do,  when  it  appears  that  the 
other  party  relied  upon  the  promise  to  the  extent  of  believing 
that  the  services  will  be  rendered  in  a  skillful  and  proper 
manner.^ 

The  veterinary  surgeon  cannot,  properly,  allow  another  to  act 
in  his  place  in  the  care  of  the  animal  intrusted  to  him ;  the 
owner  of  the  horse  may  well  be  supposed  to  rely  upon  him,  his 
reputed  learning,  and  sldll ;  he  might,  if  he  could  not  command 
the  services  of  the  man  of  his  choice,  prefer  some  other  to  the 
person  to  whom  the  one  he  had  charged  with  the  business  had 
confided  it,  and  it  would  appear  that  the  doctor,  who  should 
thus  delegate  the  performance  of  his  duties  to  another,  might 
neither  be  able  to  collect  his  recompense  nor  avoid  responsi- 
bility. 

§  141.  The  veterinary  surgeon  has  a  lien. — A  lien  exists 
in  favor  of  the  veterinary  surgeon  for  his  fees  and  expenses  in 

■  1  Hare  v.  Reese,  7  Phil.  (Pa.)  138;  Hesse  v.  Kippel,  1  Mich.  (X.  P.)  109;  Carpen- 
ter?;. Blake,  GO  Barb.  (N.  Y.)488. 

2  Gill  V.  Middleton,  105  Mass.  477;  Baird  v.  Gillett,  47  N.  Y.  18G:  Conner  v. 
Winton,  8  Ind.  :'>J5.  This  was  an  action  against  Wintou  by  Conner,  for  mal- 
practice as  a  veterinary  surgeon;  the  jury  were  instructed  that  "if  W  pre- 
tended to  no  skill  as  a  farrier,  or  was  not  known  to  C  as  such,  but  as  a  matter 
of  friendship,  or  otherwise,  recommended  the  operation,  and  it  was  assented  to 
by  C,  and  v.-as  performed  accordingly,  W  is  not  liable,  even  though  the  horse 
(lied  in  consequence  of  it."     Held,  that  W  was  a  mandatory,  and  responsible 


185  THE    LAW  AS    TO    HORSES.  §  141 

keeping  the  horse,  and  he  may  detain  the  animal  until  his  proper 
charges  arc  paid ;  he  occupies  a  position,  in  the  premises,  similar 
to  that  o£  the  trainer  or  horse-breaker,  and  the  statements  of 
the  legal  principles  involved,  hereinbefore  made,  are  equally  ap- 
plicable to  the  person  who,  by  his  skill,  saves  the  health,  useful- 
ness, or  life  of  the  animal,  as  they  are  to  the  owner  of  the 
stallion,  or  the  breaker  or  trainer  of  horses ;  by  the  skill  and 
care  of  the  veterinary  surgeon,  strictly  speaking,  the  value  or 
usefulness  of  the  chattel  is  not  created,  but  it  is  preserved,  and 
restored  when  it  would  otherwise  be  lost.^  Like  others,  who 
have  such  liens,  the  surgeon  must  guard  his  possession  of  the 

as  sncli  for  gross  ignorance  or  gross  negligence,  and  hence  the  instruction  was 
erroneous. 

^  Rodgers  v.  Grotlie,  58  Penu.  414.  This  was  an  action  of  replevin  for  ahorse; 
the  plaintiff  delivered  the  horse,  when  it  became  sick,  to  one  Beam,  to  cure,  un- 
der an  agreement  to  pay  .510,  and  $1  per  niontli  for  pasture,  and  other  feed  at 
cost ;  plaintiff  found  the  horse  in  possession  of  defendant,  who  showed,  on  the 
trial,  that  Beam  took  the  liorse  from  plaintiff  under  this  agreement,  kejit  him  a 
month,  could  not  cure  him,  notified  plaintiff  of  that  fact,  and  desired  him  to 
pay  charges,  as  per  contract,  and  take  the  horse  away;  that  plaintiff  did  not 
comply  with  this  demand,  hut  left  the  horse  a  long  time  with  Beam ;  that  B  con- 
tinued to  treat  and  care  for  the  horse,  through  this  period  of  several  months,  and 
again  notified  plaintiff,  to  pay  charges  and  take  his  liorse;  that  plaintiff  did  oifer 
to  pay  Beam  a  sum  less  than  was  due,  and  take  the  horse,  hut  B  did  not  accede  to 
the  offer,  and  having  been  xuiable  to  get  liis  pay  from  plaintiff,  and  having  given 
notice  to  plaintiff  tliat  Unless  payment  of  his  just  charges  was  made  he  would 
sell  the  horse,  Beam  afterward  did  sell  the  same  to  defendant  for  full  value. 
Upon  these  facts,  the  Court  held  that  a  lieu  existed  in  favor  of  the  successor  in 
interest  of  the  bailee,  and  rendered  final  judgment  in  favor  of  defendant;  but 
as  this  case  measurably  turns  on  the  construction  of  a  local  statute,  the  deduc- 
tion of  general  jirinciples  from  the  decision  requires  a  consideration  of  the  opin- 
ion, which  is  as  follows:  "At  the  common-law,  the  lien  of  a  bailee  for  service 
lasts  only  while  he  retains  the  possession.  His  relation  to  the  bailor,  the  o\vner 
of  the  chattel,  is  a  personal  one,  and  grows  out  of  the  confidence  the  bailor  is 
presumed  to  repose  in  the  skill  and  fidelity  of  his  bailee,  when  intrusting  his 
property  to  him,  for  the  service  intended  to  be  performed  ujion  or  toward  it.  The 
law  implies  a  contract,  on  the  jsart  of  the  bailee,  to  perform  the  service  skilfully, 
and  then  return  the  chattel  faithfully,  on  jiayment  of  his  service.  Hence,  if  he 
sell,  or  pawn  it  away,  he  is  giiilty  of  a  breach  of  his  fidelity  to  the  bailor,  and 
at  once  forfeits  his  right  of  lien.  The  authorities  cited  by  the  defendant 
in  error  clearly  show  this  to  be  the  law,  and,  so  far,  the  learned  judge 
(who  acted  in  the  Coiirt  below  as  nisi  iwitis)  would  have  been  justified  in  his 
rulings.  But  when  the  Act  of  14th  December,  18G3,  (Purdon,  by  Brightly,  1344) 
gave  to  the  bailee  the  power  to  sell  the  property  at  auction,  in  order  to  enforce 
his  lien,  it  introdticed  a  cliange  in  the  relation  of  the  parties  which  relieved  the 
bailee  from  the  duty  that  required  constant  i^ossessiou  as  the  means  of  enforcing 
his  lien.  The  proiJerty  in  his  hands  then  became  a  security  for  his  claim,  with 
the  means  of  enforcing  payment.  The  property  was  thus  capable  of  transfer  to 
any  one  who  would  bid  for  it  in  the  due  course  of  procedure,  and  of  conversion 


§  142  THE    LAW  AS   TO    HORSES.  186 

horse,  as  his  lien  depends  on  that,  under  the  common-law  rule 
that  the  lien  of  a  bailee  for  service  only  lasts  while  he  retains 
possession. 

§  142.  Farriers  occupy,  toward  the  owner  of  animals  sent 
to  them  to  be  shod,  substantially  the  same  relation,  as  to  duties, 
responsibilities,  and  advantages,  as  do  horse-trainers  and  veteri- 
nary surgeons ;  they  may  not,  unreasonably,  refuse  to  shoe  a 
horse,  l^ecause,  where  a  man  takes  upon  himself  a  public  em- 
ployment, he  is  bound  to  serve  the  public  as  far  as  his  employ- 
ment goes,  or  an  action  lies  against  him  for  refusing.^ 

His  remuneration  is  a  matter  of  contract,  and  where  there  is 

into  money.  The  relation  between  the  parties  was  thus  changed  in  its  most  im- 
portant and  peculiar  feature.  But  in  this  case  the  bailee  did  not  pursue  the  act  of 
assembly,  by  making  a  public  sale,  after  due  notice  to  the  o'.\Tier  to  come  and 
take  away  his  horse,  and  pay  the  charge  upon  him.  Tlie  sale,  it  is  very  certain, 
did  not  carry  the  title,  and  left  the  defendant,  who  was  the  purchaser,  unpro- 
tected against  the  demand  of  the  plaintiff,  as  the  owner  of  the  horse,  in  an 
action  of  replevin;  and  this  brings  us  to  the  only  substantial  question  in  the 
cause.  The  defendant  claimed  the  benefit  of  the  lien  of  the  bailee,  and  the 
right  to  retain  the  horse  until  payment  of  the  bailee's  charges,  and  for  this  pur- 
pose offered  to  prove  that  after  the  bailee  gave  notice  to  the  plaintiff  to  pay  his 
charges,  and  after  waiting  the  sixty  days  required  by  the  act,  the  bailee 
'transferred  the  horse,  if) if/t  aZ^  his  claims  ^qmn  him,  to  the  defendant,  for  full 
value.'  This  offer  the  Court  rejected,  on  the  ground  of  irrelcA'ancy.  Though 
right  under  the  common-law,  we  think  the  Court  erred  in  view  of  the  change  in 
the  relation  wrought  by  the  statute.  The  property  in  the  hands  of  the  bailee 
being  now  a  security  for  the  payment,  with  the  means  of  procuring  satisfaction 
by  a  sale  and  conversion,  the  reason  of  the  common-law  rule  has  ceased. 
There  seems  to  be  now  no  good  reason  why  a  transfer  of  the  debt  or  charge  for 
the  property,  together  with  the  possession  of  the  property,  should  not  effect  a 
substitution  of  the  purchaser  to  the  right  of  the  bailee  to  receive  the  money, 
and  to  retain  the  security  vmtU  payment,  where  the  sale  and  transfer  have  been 
bona  Me,  and  there  has  been  no  fraiid  or  abuse  of  the  oAvner's  property.  As 
the  owner  of  the  charge,  the  purchaser  is  capable  of  giving  the  owner  of  the 
property  a  sufficient  receiptor  acquittance  for  the  debt,  and  has  in  equity  the 
same  right  to  proceed  regularly  to  demand  payment,  and  to  enforce  it  by  a  sale 
in  due  course  of  law,  after  notice,  as  the  bailee  had  originally.  The  rights  of 
the  owner  of  the  property  remain  unchanged.  He  is  bound  only  for  the  charge 
as  it  existed  in  the  bailee,  and  can  demand  and  receive  his  property  from  the 
Xrarchaser  precisely  on  the  terms  he  could  do  if  his  property  yet  remained  in 
the  bailee's  hands.  In  the  absence  of  fraud  or  removal  of  the  property  out  of 
reach,  or  any  other  act  of  abuse  of  the  original  relation  of  bailment,  there  seems 
to  be  no  equity  in  permitting  him  to  recover  without  doing  equity  by  paying  or 
tendering  the  charge,  which  is  a  lien  on  the  property.  We  are  of  opinion  that 
the  Court  below  erred  in  ruling  out  the  defendant's  offers.  These  remarks  suf- 
ficiently indicate  the  principles  upon  which  the  case  should  be  retried." 
1  Lane  v.  Cotton,  1  Salk.  18. 


187  THE    LAW   AS   TO    HOESES.  §  142 

no  special  agreement,  he  must  go  upon  a  quantum  meruit ;  the 
local  usage  as  to  price  is  the  general  measure  of  his  com- 
pensation, as,  from  the  constant  demand  for  his  service,  a  cus- 
tom as  to  charge  becomes  unavoidable,  and  the  contracting 
parties  are  presumed  to  know  the  custom. 

The  farrier,  in  taking  a  horse  to  shoe,  by  implication,  under 
the  law,  contracts  to  do  the  work  in  a  proper  manner,  is  bound 
to  possess  and  exercise  the  requisite  degree  of  skill  and  care, 
so  to  do ;  and  if  he  prick  a  horse,  or  otherwise  injure  him  in 
shoeing,  an  action  lies  against  him  to  recover  the  damage  done, 
unless  the  farrier  is  able  to  show  that  the  accident  occured 
through  no  lack  of  skill  or  care  on  his  part,  or  that  of  his  em- 
ployee, in  doing  the  work.^ 

1  2  Chitty's  Plead.  262;  Eex  v.  Kilderly,  1  Saund.  312,  IST.  2;  Everard  v.  Hop- 
kins, 2  Bolster,  332;  Longmead  v.  Holliday,  G  Ex.  764;  Collins  v.  Eodway,  an 
unreported  case  before  Chief  Baron  Pollock,  at  Nisi  Prius,  1845. 

In  this  case,  an  action  was  brought  against  a  farrier  for  unskUlfulness  in  the 
shoeing  of  two  horses,  sent  by  the  plaintiff  to  be  shod  at  defendant's  forge, 
which  he  carried  on  for  the  jiurpose  of  slioeiag  horses  with  a  shoe  for  which  he 
had  a  patent.  The  one,  a  gray  mare  pony,  was  sent  on  the  16th  of  July,  in  the 
CTening,  after  working  hours,  and  was  shod  at  the  particular  request  of  plaint- 
iff's father.  On  the  17th,  she  was  driven,  with  two  men  in  a  gig,  to  Barnett,  and, 
it  was  admitted,  for  three  miles  went  well.  On  the  20th  the  shoes  were  taken  oil 
by  the  apprentice  of  Beck,  another  farrier.  On  the  21st,  the  defendant  received 
notice  of  her  lameness,  and,  on  the  2Gth,  after  her  feet  had  been  cut  about  and 
poulticed,  she  was  reshod  by  Beck,  and  afterward  Avorked.  It  a^ipeared  that 
subsequently  she  had  been  turned  out  for  nine  weeks.  The  other  horse,  a  black 
ponj',  was  sent  to  be  shod  on  the  18th  of  July.  On  the  21st,  the  shoes  were 
taken  off  by  Beck,  and  blood  was  said  to  have  followed  the  withdrawing  of  two 
of  the  nails.  It  was  admitted  that  this  pony's  feet  were  very  thin  and  bad,  and 
his  action  very  high.  A\Tiat  was  done  to  this  pony  did  not  appear,  but  he  had 
been  under  the  care  of  a  veterinary  surgeon,  and  was  finally  sold  for  a  small 
price.  The  defendant's  case  rested  on  two  grounds:  First — That  even  if  the 
ponies  were  lamed  by  him  in  shoeing,  he  was  not  liable,  because  he  had  brought 
to  the  i^erformance  of  that  duty  competent  skill  and  reasonable  care.  Sec- 
ondly— That  the  lameness  of  the  other  resulted  from  causes  other  than  defend- 
ant's shoeing. 

In  summing  up.  Chief  Baron  Pollock  said  to  the  jury:  "The  only  rule  of  law 
that  I  feel  it  necessary  to  lay  down  upon  the  subject  in  this  case  is,  that  if  this 
operation  has  been  performed  unskillfully  and  improperly,  the  defendant  is  lia- 
ble to  the  plaintiff  for  any  mischief  that  may  have  resulted  from  siich  unskillful- 
ness,  but  he  is  liable  only  to  the  extent  to  which  mischief  has  been  produced. 
The  rule  I  take  to  be  this:  that  a  person  employed  for  any  purpose  must 
bring  to  tlie  subject-matter  a  reasonable  skill  and  fitness,  and  he  must  exercise 
that  reasonable  skill  and  fitness  with  due  and  proper  care.  If  he  be  deficient 
in  the  requisite  skillfulness,  and,  in  consequence  of  that,  the  operation  is  per- 
formed in  a  bad  or  bungling  manner,  or  if.  having  the  requisite  skillfulness,  he 
fails  to  bring  it  to  act,  he  is  liable  for  any  mischief  which  results  from  that." 
(14  Veterinarian,  102.) 


§  143  THE    LAW   AS    TO    HORSES.  188 

If  a  horse  be  injured,  in  shoeing,  by  the  negligence  of  the 
farrier's  servant,  or  by  reason  of  his  want  of  skill,  the  master 
is  liable,  because  the  employer,  the  proprietor  of  the  farrier's 
shop,  in  holding  himself  out  to  the  public  to  do  work  of  the 
special  character  indicated,  at  his  place  of  business,  induces  the 
owner  of  the  animal  to  bring  him  there  to  be  shod,  and  is  the 
cause  of  the  horse  being  intrusted  to  the  careless  or  unskilled 
workman.-' 

But  if  the  wrong  be  willful,  as  if  the  servant  maliciously 
drove  a  nail  into  the  horse's  foot  in  order  to  lame  him,  the  master 
would  not  be  liable  ;  he  is  bound  to  see  that  his  workmen  possess 
the  requisite  skill ;  this  he  has  means  of  ascertaining,  and  so, 
with  safety,  placing  himself  in  a  position  wherein  he  guarantees 
his  abilities,  but  he  cannot  guard  against  malice,  or  actions  in- 
stigated by  motives  of  which  he  can  have  no  knowledge,  and 
for  these,  therefore,  he  should  not  be  called  to  answer.^ 

§  143.  The  farrier  has  a  lien  for  his  charges  in  shoeing 
upon  the  animal  left  with  him  for  that  purpose  ;  this  lien,  like 
that  of  trainers,  the  owner  of  the  stallion  which  has  served  a 
mare,  the  veterinary  surgeon  who  has  saved  or  restored  to 
health  a  sick  or  injured  horse,  results  from  the  general  prin- 
ciple above  enunciated,  that  where  chattels  are  intrusted  to  one 
of  a  special  trade,  calling,  or  pursuit,  to  be  by  him  worked  upon 
in  such  manner  as  to  develop  or  preserve  its  natural  usefulness, 
or  to  increase,  by  his  labor  and  skill,  the  especial  value  of  the 
property,  the  person  who  does  the  work  should  and  may  look  to 
the  chattel  upon  which  he  has  operated  for  his  remuneration, 
rather  than  be  forced  to  trust  to  the  honesty  or  pecuniary  abil- 
ity of  his  employer. 

Hence,  it  results  that  where,  from  the  nature  of  his  employ- 
ment in  a  specified  calling,  such  as  a  horse-shoer  at  a  forge  in  a 
public  place,  a  person  is  obliged,  at  reasonable  times,  to  hold 
himself  subject  to  the  demands  of  such  as  require  his  services 
therein,  the  person  who  does  the  work  may  retain  the  chattel 
until  his  charges,  they  being  fair,  are  paid."^ 

1 1  Bl.  Com.  431;  Randleson  v.  Murray,  8  A.  &  E.  109. 

2  Jones  V.  Hart,  2  Salk.  440. 

3  Lane  v.  Cotton,  Ante  ;  Bacon's  Abr.  Trover,  (E)  816,  in  which  it  is  said 
that  trover  does  not  lie  against  a  farrier  for  refusing  to  deliver  a  horse  which 
he  has  shod,  unless  the  money  for  shoeing  has  been  paid  or  tendered. 


1^9  THE    LAW  AS   TO    HORSES.  §  143 

The  animal  can  only  thus  be  kept  for  work  clone  at  the  thne 
when  the  lien  is  claimed.  The  lien  cannot  be  claimed  for  a 
former  bill  or  pi-evious  account,  even  for  shoeing  the  same 
horse. 

The  rule,  as  we  have  already  seen,  is  that  if  the  person  who 
claims  the  lien  permits  the  animal  to  return  to  its  owner,  if  he 
parts  with  the  possession,  he  loses  his  lien  ;  and  hence  it  results 
that,  his  lien  as  to  the  previous  charges  having  lost  its  vitality, 
it  cannot  be  revived  by  a  new  employment.^ 

Scarfe  v.  Morgan,  4  M.  &  W.  280;  Chase  v.  Westmore,  5  M.  &  S.  189.  "Be- 
cause the  artificer  to  vrhom  goods  are  delivered  for  tlie  purpose  of  being  worked 
into  form,  the  farrier  by  whose  sliill  an  animal  is  cured  of  a  disease,  the  horse- 
breaker  by  whose  skill  a  horse  is  rendered  manageable,  and  the  man  who  covers 
a  mare  with  a  stallion,  have  liens  on  the  chattels  in  respect  of  their  charges." 

1  Eashforth  i'.  Iladlield,  7  East,  229;  Oliplianfs  Law  of  Horses,  p.  237.  "  But 
the  horse  can  only  be  kept  for  work  done  at  that  particular  time,  for  the  lien 
does  not  extend  to  any  previous  account ;  and  when  this  point  was  decided  by 
the  Court  of  Queen's  Bench,  Lord  Ellenborough  said:  'Growing  liens  are 
always  to  be  looked  at  with  jealousy,  as  they  are  encroachments  on  the  com- 
mon law.'  " 


144  CATTLE.  ,  190 


CHAPTER  XII. 

CATTLE. 

§  144.  Special  laws  for  protection  of  cattle  from  disease. 

§  145.  Effect  of  statutes  for  i^rotection  of  cattle  from  contagion. 

§  146.  Sale  of  cattle  affected  by  contagious  disease. 

§  147.  Laws  to  i^revent  importation  of  diseased  cattle. 

§  148.  Marks  and  brands. 

§  149.  Drovers  of  cattle,  their  rights  and  duties. 

§  150.  Eight  to  graze  cattle  on  oidcu  commons. 

§  144.  Special  statutes  for  the  protection  of  cattle  from 
disease  have,  at  various  times,  been  deemed  requisite  by  the 
Congress  of  the  United  States.  "An  Act  to  prevent  the  spread 
of  foreign  diseases  among  the  cattle  of  the  United  States,"  was 
duly  passed  December  18th,  1865,  providing,  in  terms,  "that 
the  importation  of  cattle  be  and  hereby  is  prohibited."  Sec- 
tion 2  of  the  act  continues  in  force  the  foregoing  provision  until 
proclamation  given  by  the  President,  for  thirty  days,  shall  de- 
clare that  "  no  further  danger  is  to  be  apprehended  from  the 
spread  of  foreign  infections  or  contagious  diseases  among  cat- 
tle." i 

Another  act,  passed  March  6th,  1866,  forbids  the  importation 
into  the  United  States,  from  any  foreign  country,  any  live  cattle, 
or  hides  of  dead  cattle,  until  the  Secretary  of  the  Treasury  or 
President  shall  give  public  notice  or  proclamation  that  no  dan- 
ger from  such  importation  of  infection  exists.^ 

In  New  Hampshire,  provision  by  statute  is  also  made,  to  the 
effect  that  whenever  any  dangerous  or  troublesome  disease  pre- 
vails among  cattle,  the  governor  may  appoint  a  board  of  five 
commissioners  to  make  due  examination  in  the  premises,  and 
prohibit  the  introduction  into,  or  transportation  through,  the 
State  of  cattle  affected  by  infectious  diseases.^ 

1  U.  S.  statutes  at  Large,  Vol.  14,  p.  1.  2  rbkl,  pp.  3-4. 

3  stats,  of  New  Hampshire,  1867-71,  p.  524. 


191  CATTLE.  §  145 

By  the  statute  laAV  of  Iowa,  under  the  title  of  "  An  Act  to 
prevent  the  importation  of  Texas  or  Southern  cattle,  and  the 
spread  of  the  so-called  Texas  or  Spanish  fever  among  the  cattle 
of  Iowa,"  it  is  provided  that  it  shall  not  be  lawful  for  any  one 
to  bring  into  that  State,  or  to  have  in  his  possession  within  the 
said  State,  any  Texas,  Cherokee,  or  Indian  cattle,  except  such 
as,  at  the  time  of  the  passage  of  the  act,  were  in  the  State,  and 
those  must  be  so  guarded  as  to  prevent  any  disease  being  spread 
by  them.^ 

In  several  of  the  other  States,  there  are  similar  statutes,  of  a 
quasi-police  character,  for  the  prevention  of  the  introduction  of 
cattle  affected  by  diseases  of  an  infectious  character.  In  some, 
it  is  allowed  to  kill  any  animal  so  diseased  as  to  become  a  source 
of  danger  to  other  cattle  ;  and  in  other  States,  as  in  Missouri,  he 
who  has  diseased  or  distempered  animals  must  so  restrain  them 
as  to  guard  against  spreading  the  ailments  to  which  cattle  are 
liable,  and  especially  that  commonly  known  as  Texas  or  Spanish 
fever,  and  in  other  States,  as,  for  example,  Massachusetts,  the 
disease  "  pleuro-pneumonia  "  among  cattle.^ 

§  145.  Effect  of  laws  for  protection  of  animals  from 
contagion.  —  The  general  scope  and  tenor  of  these  statutes 
for  the  protection  of  cattle  is  not  alone  by  the  appointment 
of  boards  of  examiners,  with  plenary  powers  in  the  j^remises, 
to  extii^pate  disease  by  the  destruction  of  diseased  animals,  and 

1  Laws  of  Iowa,  18G1  to  1808,  p.  272. 

2  Missouri  Stats,  by  Wagenar,  Vol.  1,  p.  135;  Ibid,  251;  Stats,  at  Large  of  Min- 
nesota, Bissell,  Vol.  2,  1873,  p.  1102;  Compiled  Laws  of  Michigan,  Vol.  1,  1871, 
p.  569;  Supplement  to  Stats,  of  ISIassachusetts,  186(M)r),  p.  34;  Ibid,  p.  41;  Ibid, 
p.  43;  Ibid,  p.  78;  Ibid,  p.  123;  Genl.  Stats,  of  Kentucky,  1873,  p.  178;  Ibid,  348; 
Genl.  Stats,  of  Kansas,  1868,  p.  1013;  Ibid,  1872,  p.  387;  Ibid,  1873,  p.  262;  Re- 
vised Stats,  of  Maine,  1871,  p.  221.  "The  municipal  officers  of  towns,  in  case  of 
the  existence  of  the  disease  called  long  murrain,  or  pleuro-imeumonia,  or  any 
other  contagious  disease,  shall  cause  the  cattle  in  their  to-^^^ls  infected,  or  wlilch 
have  been  exposed  to  infection,  to  be  seciired  or  collected  in  some  suitable  place 
or  places  therein,  and  kept  isolated;  and,  when  taken  from  the  possession  of 
their  owners,  one-lifth  of  the  expense  thereof  is  to  be  paid  by  the  town,  and 
four-fifths  at  the  expense  of  the  State,  such  isolation  to  continue  so  long  as  the 
existence  of  such  disease  or  other  circumstances  may  render  it  necessary;  or 
they  may  direct  the  owners  thereof  to  isolate  such  cattle  upon  their  own  prem- 
ises, and  any  damage  or  loss  sustained  thereby  shall  be  paid  as  aforesaid." 
(Genl.  Stats,  of  New  York,  18(57-70,  p.  434;  Ibid,  105;  Genl.  Laws  of  Oregon, 
1845-C4,  p.  G44;  Genl.  Laws  of  Ohio,  1868,  p.  11;  Laws  of  Pennsylvania,  1700-1870; 


§  145  CATTLE.  192 

by  imposing  penalties  upon  the  introduction  of  cattle  affected 
by  contagious  distempers,  or  by  stringent  regulations  to  the 
same  end,  but,  as  in  the  language  of  the  Kentucky  statutes, 
"  the  owner  of  any  distempered  cattle  who  shall  permit  them  to 
run  at  large  outside  of  his  inclosure,  or  shall  drive  them  into 
or  through  any  part  of  this  commonwealth,  (Kentucky)  unless 
it  be  from  one  part  of  his  inclosure  to  another,  shall  forfeit  and 
pay  the  sum  of  ten  dollars  for  each  head ;  and  when  such  cattle 
shall  die,  the  owner  thereof  shall  cause  them  to  be  buried ;  and 
if  he  fail,  he  shall  be  fined  five  dollars  for  each  offense."  ^  From 
these  stringent  rules  imposed  by  special  legislation,  it  would 
naturally  Ijc  supposed  that  the  general  law  would  impose  cor- 
respondingly severe  restidctions,  but  such  is  not  wholly  the  case. 
Keeping  cattle  which  are  affected  by  an  infectious  disease  is 
not,  of  itself,  an  act  of  culpable  negligence.  The  owner  can- 
not be  held  responsible  for  the  communication  of  the  disease  to 
other  animals,  unless  it  appear  that  there  was  some  fault  on  his 
part  other  than  the  mere  keeping  of  the  animals  on  his  prem- 
ises; nor  does  the  fact  that  his  neighbor  keeps,  to  his  knowl- 
edge, healthy  animals  in  his  field  adjoining,  alter  the  case.^   The 

Purdon's  Dig.  by  Brightly,  Sec.  1417;  Genl.  Stats,  of  Ehode  Island,  1872,  p.  178; 
Genl.  Stats,  of  Vermont,  1870,  p.  G70,  Sec.  27;  Stats  of  Wis.  Taylor,  1871,  p.  800. 
Sees.  4,  5,  and  (3;  Code  of  W.  Virginia,  1868,  p.  240,  Sec.  44.) 

1  Statutes  of  Kentucky,  1873,  \\.  178. 

2  Shearman  &  Redlield  on  Negligence,  Sec.  l."3;  Fisher  v.  Clark,  41  Barb.  (N. 
Y. )  329.  This  action  was  brought  by  the  plaintiff,  to  recover  damages  upon  the  fol- 
lowing facts :  The  parties  were  farmers  owning  adjoining  farms ;  each  had  a  flock 
of  sheep;  those  of  the  defendant  had  a  contagious  disease  called  the  scab,  and 
the  facts  of  the  disease  and  its  character  were  known  to  defendant;  the  defend- 
ant sent  word  to  i^laintiff  that  he  intended  to  turn  his  flock  of  diseased  sheep 
into  the  field  adjoining  that  wherein  plaintiff  had  his  liealthy  flock;  against  this 
plaintiff  remonstrated,  and  defendant  iiromised  to  forego  his  said  intention,  but 
did  not  keep  to  this  agreement,  but  returned  to  his  original  intention,  and,  with- 
out notice  to  i^laintiff,  turned  into  his  field,  adjoining  plaintiff's  jiasture  lot, 
wherein  were  his  healthy  sheep,  the  diseased  sheep ;  the  fences  were  not  ' '  sheei) 
tight";  the  lambs  and  some  of  the  sheep  from  the  affected  flock  got  among 
plaintiff's  sheep,  and,  as  the  natural  result,  the  healthy  flock  of  iilaintiff  became 
diseased,  and  largely  damaged  in  their  market  value. 

On  appeal,  the  decision  was  adverse  to  the  right  of  recovery. 

By  the  Court,  E.  Darwin  Smith,  J. :  It  is  well  settled  that  every  man  has  the 
absolute  right  to  use  his  own  property  as  he  pleases,  for  all  the  purposes  to  which 
such  property  is  usually  applied,  without  being  answerable  for  the  conse- 
quences, provided  he  exercises  proper  care  and  skill  to  prevent  any  unnecessary 
injury  to  others.  (4  Coms.  202. )  This  right  to  use  his  property  as  he  pleases 
is  unlimited  and  unqualified,  up  to  the  point  where  the  particular  use  becomes 


193  CATTLE.  §  145 

a  nuisance.  (22  Barb.  297;  Picard  r.  Collins,  23  Id.  4-14.)  The  complaint  in  this 
action,  before  the  justice,  stated  that  the  defendant,  while  the  plaintiff  was  occu- 
pying adjoining  land  to  his  for  the  pasturage  of  a  flock  of  sheep,  turned  into  his  lot, 
adjoining,  a  flock  of  sheep  which  he  knew  had  a  contagious  disease,  known  as 
the  scab,  by  reason  of  which  the  plaintiff's  sheep  took  the  disease,  and  he  sus- 
tained damage.  The  gravamen  of  the  complaint  is,  that  the  defendant,  know- 
ing that  the  xilaintiff  had  a  flock  of  sheep  running  in  his  lot,  turned  his  own  sheep, 
having  the  scab,  a  contagious  disease,  into  an  adjoining  field  on  his  own  farm. 
There  is  no  allegation  of  negligence,  carelessness,  or  of  a  malicious  intent  to 
injure  the  iilaintiff. 

The  justice  must  have  held,  upon  the  complaint,  that  this  act  of  the  defendant 
gave  to  the  plaintiff  a  right  of  action  to  recover  to  the  extent  of  the  injury  sus- 
tained; that  is  to  say,  he  mu.st  have  helcT,  and  that  is  the  claim,  that  simply 
turning  his  own  sheep,  having  an  infectious  disease,  into  his  own  lot  adjoining 
a  lot  of  the  plaintiff's,  occupied  with  sheep,  was  unlawful,  or  such  an  act  of 
■wrong  or  negligence  as  gave  to  the  plaintiff  a  legal  cause  of  action  for  any  in- 
jury sustained. 

To  maintain  an  action  there  must  be  a  legal  injury,  an  invasion  of  some  posi- 
tive, certain,  legal  right.  It  could  be  no  violation  of  the  plaintiff's  rights  for  the 
defendant  to  occupy  his  own  land  in  his  own  way,  unless  lie  created  a  nuisance 
thereon.  Pasturing  sheep  having  an  infectious  disease  "was  not  a  nuisance.  It 
"was  and  could  bo  no  injury  to  the  jilaintiff  unless  he  suffered  his  sheep  to  take 
the  contagion  by  permitting  them  to  come  in  contact  with  the  defendant's  sheep. 
Each  party  had  a  right  to  use  his  own  field  to  pasture  his  sheep.  If  the  defend- 
ant's sheep  had  infectious  disease,  infectious  only  to  sheep,  he  had  the  same 
right  to  have  the  same  in  his  own  field  as  the  i^laintiff  had  to  permit  his 
sheep  to  run  in  the  adjoining  field,  exposed  to  take  such  disease.  A  iierson  sick 
with  a  contagious  disease  is  not  obliged  to  abandon  his  own  house  to  prevent 
the  spread  of  such  disease.  A  house  occupied  by  persons  having  an  infectious 
disease  is  not  a  nuisance.  (2  Barb.  104.)  It  is  not  pretended  that  the  disease 
of  the  defendant's  sheep  was  a  nuisance.  They  did  not  render  the  enjoyment 
of  life  or  property  uncomfortable,  (Fish  u.  Dodge,  4  Denio,  311)  or  endanger  the 
health  of  the  neighborhood.  (9  Paige,  575;  3  Barb.  157.)  Nor  were  they  offens- 
ive to  the  senses,  like  a  slaughter-house,  or  gas-works,  or  swine-sties,  or  lime- 
kiln, or  a  livery-stable,  or  a  tannery.  (17  Barb.  G54;  22  Id.  312.)  There  is  no 
basis  to  sustain  the  action  on  the  ground  of  negligence;  for  the  defendant  in- 
vaded no  legal  right  of  the  plaintiff.  The  princiiale  of  the  maxim  sic  utere  tuo, 
etc.,  will  not  sustain  the  action,  according  to  the  decision  of  the  Court  of  Ap- 
peals, in  the  case  of  The  Aubin-n  and  Cato  Plank  Poad  v.  Douglass,  5  Seld.  449, 
where  it  is  held  that  this  principle  only  applies  when  one  owns  a  tenement 
which  is  subject  to  the  servitude  of  another  tenement,  or  has  an  easement  in 
another's  land,  or  some  fixed  legal  right  or  interest  therein.  The  same  case  also 
decides  that  an  action  will  not  lie,  in  such  case,  on  the  ground  that  the  defendant 
acted  maliciously.  The  evidence  in  the  case  would,  i^erliaps,  have  furnished 
some  ground  to  raise  such  a  C[uestion  of  fact,  although  the  right  of  action  in  the 
complaint  was  not  based  upon  any  such  grounds.  But  the  case  last  citc^d  holds 
that  when  the  defendant  has  no  legal  right  or  interest  in  the  plaintiff's  premises, 
or  casement,  or  claim  thereto,  it  is  immaterial  what  may  be  the  motives  of  the 
proprietor  for  dealing  with  his  property  in  any  particular  way.  The  same  prin- 
ciple was  asserted  in  INIahan  v.  Brown,  13  Wend.  2G1,  and  in  Tlie  Nevv'burgli 
Turnpike  Co.  v.  Miller,  5  John.  Ch.  P.  101. 

In  Franz  v.  Hilterbrand,  45  Missouri,  122,  plaintiff  owned  and  worked  on  his 
place  horses  which  appeared  to  have  the  glanders;  the  neighbors,  for  safety  to 
their  animals,  themselves,  and  families,  shot  the  diseased  horses,  and  the  action 

Faem — 13. 


§  146  CATTLE.  194 

keeping  of  diseased  animals  on  a  person's  own  ground  by  him 
who  owns  the  land,  is  not  such  an  act  of  negligence  as  would 
render  him  liable  in  damages  to  the  owner  of  other  animals, 
which,  being  healthy,  come  upon  the  premises,  and  from  the  dis 
eased  cattle  take  the  malady,  even  Avhere  it  is  no  trespass  for  the- 
healtliy  animals  to  come,  if  the  owner  of  the  animals  which 
are  healthy  is  duly  warned  of  the  danger.^ 

§  146.   Sale  of  cattle  affected  by  contagious  disease. — 

If  one  sells  diseased  cattle,  fraudulently  x'cprescnting  them  ito  be 
free  from  infectious  disease,  when,  in  truth,  they  are  so  dis- 
eased, or  if  one  sells  such  as  are  so  affected  and  fraudulently 
conceals  from  the  buyer  the  fact  of  their  being  so  unhealthy 
and  dangerous,  he  is  held  to  a  strict  accountability. 

If  property  is  sold  for  a  particular  purpose,  or  to  be  used  in 
an  especial  manner,  and  the  vendor  is  aware  of  that  fact,  he 
must  be  deemed,  in  making  fraudulent  representations,  to  have 

was  against  tliem  for  damages  for  so  doing.  The  Court  held  that  "in  so  doing 
they  acted  from  a  sincere  but  mistaken  belief  that  they  had  the  right  to  enter 
the  iilaintiff's  premises  and  abate  what  they  deemed  to  be  a  nuisance  and  source 
of  danger;  they  acted  from  good,  but  mistaken  and  unjustifiable  motives,"  and 
defendants  were  held  liable  in  compensatory  bvit  not  in  exemplary  damages. 

But  in  Mills  v.  N.  Y.  &  H.  E.  E.  Co.  2  Robertson's  Keports,  326,  it  was  held 
that,  conceding  the  right  to  use  one's  own  j)remises  as  a  hospital  for  diseased 
horses,  a  person  must  not  turn  such  out  on  the  highway,  i'>ermit  them  to  drink 
at  a  public  trough,  or  otherwise  jeopardize  his  neighbors'  animals;  that  the 
owner  of  animals,  which  he  is  aware  have  a  contagious  disease,  must  exercise 
all  the  care  that  a  prudent  man  naturally  would,  or  a  rightful  regard  for  the 
interests  of  others  requires,  such  as  placing  his  diseased  animals  so  remote  from 
a  partition  between  his  stable  and  that  of  his  neighbor  as  to  render  contact  with 
his  neighbor's  animals  impossible. 

1  By  Walker  v.  Herron,  22  Texas,  55,  it  appears  that  the  keei^ing  of  diseased 
animals  on  an  open  jiasture  which  belonged  to  him,  but  to  which  animals  which 
belonged  to  other  persons  also  came  and  habitually  grazed  upon,  by  defendant's 
tacit  consent,  was  not  actionable ;  that  plaintiff,  whose  stock  took,  from  defend- 
ant's animals,  the  disease,  could  not  recover  damages  therefor,  inasmuch  as 
defendant  had  warned  him  of  the  danger. 

But  in  Barnum  v.  Van  Dusen,  16  Conn.,  which  was  an  action  for  trespass  for 
the  entry  of  diseased  animals,  it  was  held,  and  such  appears  to  be  the  rule,  that 
in  trespass  for  diseased  cattle  damage  from  infection  may  be  stated  in  aggra- 
vation. 

In  this  case,  defendant's  sheep,  which  were  diseased,  broke  into  plaintiff's 
close,  and  carried  to  his  sheep  the  malady,  which  was  infectious;  many  of  plaint- 
iff's sheep  died  from  the  disease,  and  he  was  held  entitled  to  recover,  as  dam- 
ages on  trespass  quare  ckmsumfriglt,  the  loss  suffered  in  his  ilock;  and  also,  it 
was  held  that  the  defendant's  knowledge  of  the  disease  might  properly  be  con- 
sidered by  the  jury  in  estimating  damages. 


195  CATTLE.  §  146 

accepted  the  consequences  which  might  reasonably  be  regarded 
as  likely  to  result  therefrom ;  so,  in  selling  cattle,  the  seller 
may  know,  or  in  reason  be  supposed  to  assume,  that  a  farmer, 
drover,  or  other  purchaser  would  probably  put  the  animal  Avith 
others  of  a  like  kind  in  his  possession,  and  incur  the  risk  of 
losing  them  all.  If  this  occur,  that  the  plague  spreads  from 
the  diseased  cow,  the  vendor,  who,  either  by  fraudulent  declar- 
ations or  silence,  induced  the  purchase,  ought  to  stand  the  loss.-"- 

1  "The  English  Court  of  Common  Pleas  Division,  in  Smith  v.  Green,  33  L.  T. 
(3^.  S. )  572,  held,  in  an  action  for  breach  of  Tvarranty,  the  plaintiff  may  recover 
damages  for  any  injury  which  is  the  direct  and  natural  consequence  of  his  act- 
ing on  the  faith  of  the  warranty.  In  the  case  vmder  consideration,  the  iilaintiff, 
a  farmer,  bought  a  cow  from  the  defendant,  warranted  free  from  foot  and  mouth 
disease.  The  cow  had  the  disease,  and  communicated  it  to  plaintiif's  other 
cows,  with  wMch  she  was  jjlaced.  In  an  action  for  breach  of  warranty,  the 
judge  below  told  the  jury  if  .the  defendant  knew,  or  ought  to  have  known,  that 
plaintiff,  in  the  ordinary  course,  would  piit  the  cow  with  other  cows,  they  might 
give  damages  for  the  loss  of  the  other  cows  ;  and  the  Court  on  appeal  held 
this  to  be  a  right  direction."     (Chicago  Legal  News,  Jan.  22d,  1876.) 

Mullett  V.  Mason,  (L.  Eepts.)  1  Common  Pleas,  559.  In  this  case,  the  defend- 
ant had  a  cow  which  had  been  imported  into  England  from  parts  beyond  the 
seas,  and  was  suifering  from  a  disease  which  was  infectious  ;  he  induced  jilaint- 
iff  to  buy  the  cow  by  falsely  representing  to  him  that  the  cow  had  been  raised 
on  his  father's  farm  in  the  neighborhood,  by  concealing  from  him  the  fact  that 
the  animal  was  diseased,  and  informing  him  that  it  was  free  from  disease. 

The  plaintiff,  relying  upon  these  representations,  j^aid  a  fair  price  for  and 
took  the  cow  to  his  i^remises,  and  j)laced  it  with  his  otiier  stock.  In  a  short 
time  it  became  manifest  that  the  cow  had  the  plague,  and  had  infected  with 
that  disease  five  other  cows  belonging  to  iilaintiff  before  it  was  discovered  by 
plaintiff  that  his  stock  was  in  danger ;  these  five  other  cows  died,  and  the  one 
bought  became  worthless. 

Plaintiff  was  held  entitled  to  recover  the  value  of  the  five  which  died,  as  well 
as  that  which  he  had  bought,  on  the  grotmd  that  "in  an  action  for  fraudulent 
misrepresentation,  the  plaintiff  may  recover  damages  for  any  injury  which  is 
the  direct  and  natural  consequence  of  his  acting  on  the  faith  of  defendant's 
representations." 

In  Jeffries  v.  Bigelow,  13  Wend.  518,  in  a  case  of  fraud,  where  an  agent,  au- 
thorized to  sell  a  flock  of  sheep,  sold  a  portion  of  them  with  knowledge  that 
they  were  diseased,  and  the  diseased  sheep  were  mixed  with  another  flock, 
it  was  held  that  the  claim  of  the  purchaser  against  the  principal  was  not 
limited  to  the  loss  of  the  sheep  purchased,  but  extended  to  that  of  the  others  to 
which  the  distemper  was  communicated;  and  the  Court  said:  "This  damage 
was  the  natural  consequence  of  the  fraudulent  act  of  the  defendant's  agent." 

See,  also,  Knowles  v.  Nemus,  14  L.  T.  (N.  S.)  Q.  B.  592,  and  Farris  v.  Lewis,  2 
B.  Momoe,  375;  Sedgwick  on  Damages,  59,  100, 149.  In  Packard  r.  Slack,  32  Ver- 
mont, 9,  it  was  held  that  it  was  not  necessary  to  the  recovery  of  the  special 
damages  to  show  that  the  vendor  knew  that  the  diseased  animal  was  to  be 
placed  with  others  belonging  to  the  plaintiff. 

Winty  r.  Morrison,  17  Texas,  was  a  case  where  a  man  sold  a  drove  of  horses, 
which  he  knew  to  be  infected  with  a  contagious  disease,  and  concealed  the  fact 


§  147  CATTLE.  196 

§  147.  Laws  to  prevent  importation  of  diseased  ani- 
mals.— The  prohibition  of  the  bringing  of  animals  affected  by 
diseases  wliich  are  infections,  is  not  an  infringement  of  the 
right  of  the  citizen  to  acquire,  use,  and  dispose  of  property; 
neither  Is  it  such  an  exercise  of  legislative  power  by  a  State  as 
to  interfere  with  the  enumerated  powers  granted  to  Congress, 
"  to  regulate  commerce  with  foreign  nations  among  the  several 
States,  and  with  the  Indian  tribes."  ^  Such  enactments  come 
within  the  scope  of  the  police  powers  of  the  State,  and  the  con- 
stitutional questions  are  but  little,  if  any,  more  involved  than 
by  the  exercise  of  ordinary  police  powers,  l^y  which  the  liberty 
of  the  citizen  is  limited  for  the  public  good.  Each  State  has 
the  unquestioned  right  to  pass  all  laws  necessary  for  the  re- 
straint and  punishment  of  crime,  the  preservation  of  the  public 
peace,  and  the  health  and  morals  of  its  citizens.  By  virtue  of 
this  power,  the  importation  and  sale  of  cards,  dice,  and  billiard- 
tables  have  been  prohibited ;  the  traffic  in  spirituous  liquors 
regulated  and  suppressed ;  the  vending  of  lottery  tickets,  the 
sale  of  unwholesome  food  or  drink,  and  the  making  or  manu- 
facturing of  poisonous  candies,  are  made  penal  offenses. 

So,  under  due  exercise  of  the  police  power,  property  may  be 
destroyed  in  time  of   conflagration,  nuisances  may  be  abated, 

that  they  were  diseased  from  the  Irayer,  who  bought  for  a  sound  price;  the  ven- 
dee, in  exercising  his  right  to  rescind  the  contract,  Vv^as  liekl  entitled  to  recover  the 
money  paid,  with  interest,  and  the  value  of  his  care,  expenses,  and  attention  in 
preserving  the  herd.  If  he  should  elect  not  to  rescind,  he  would  he  entitled  to 
damages  equivalent  to  the  value  of  such  as  had  died  and  the  difference  between 
the  value,  at  that  time,  of  the  surviving  horses  and  the  price  paid  for  them,  with 
interest  on  these  sums  from  the  date  of  sale ;  also  the  A'alue  of  his  care,  time, 
and  expense  in  preserving  the  herd.  The  buyer's  damages  are  not,  in  such 
cases,  confined  to  those  actually  diseased  at  the  time,  but  the  disease  is  re- 
garded as  infecting  the  whole  herd,  to  the  extent  proved  vip  to  the  time  of  trial. 
The  latter  is  liable  also  for  the  damages  sustained  by  the  buyer  to  the  extent  of 
the  contagion  communicated  to  other  animals  of  the  buyer  ^vithout  his  default. 

1  Yeazel  v.  Alexander,  58  111.  254;  Lenndville  v.  Marks,  Ibid,  371;  Davis  v. 
Walker,  CO  111.  452;  Newkirk  v.  Milk,  Ibid,  172;  City  of  St.  Louis  v.  McCoy,  18 
Mo.  238;  Same  v.  Boflinger,  19  Mo.  13;  R.  E..  Co.  v.  Fuller,  17  Wall.  5G0;  License 
Tax  Cases,  5  Wall.  462;  Slaughter-House  Cases,  10  Wall.  G2;  Gibbon  v.  Ogdcn, 
9  Wheat.  1. 

E.  E.  Co.  V.  Gossway,  Supreme  Court  of  111.  Jan.  IGth,  1875.  The  act  for  the 
prevention  of  "Texas"  or  "Cherokee"  cattle  being  brought  into  Illinois  held 
constitutional. 

"A  common  carrier  is  not  bound  to  receive  for  transportation  that  which  the 
law  prohibits  it  from  carrying,  and  it  must  be  held,  in  this  respect,  to  act  at  its 
peril."    (Ibid.) 


197  CATTLE.  §  148 

goods  from  a  neighborhood  where  an  infectious  disease  is  pre- 
vailing may  be  prohibited  from  being  brought  into  the  State, 
and  every  species  of  infectious  property,  everything  manifestly 
injurious  to  the  public  health  or  morals,  may  be  prohibited  or 
removed.  Even  the  importation  of  gvmpowder,  not  on  account 
of  any  qualities  of  taint,  but  because  of  its  explosive  character, 
may  be  prevented.  All  such  legislation  -would  be  a  direct  in- 
terference with  trade,  yet  the  power  has  never  been  questioned. 
It  results  from  the  law  of  self-preservation,  Avhich  is  inherent  in 
eveiy  community.  It  is  a  right  which  j^ertains  to  the  State 
exclusively  ;  its  exercise  must  be  prompt,  and,  strictly  speaking, 
occasional.  From  its- nature  it  would  not  naturally  have  been 
parted  with  to  the  General  Government,  and  it  could  not  have 
been  delegated.  The  State  is  under  the  same  obligation,  and 
has  the  same  power,  to  protect  the  property  of  the  citizen  from 
disease  and  death,  as  to  preserve  its  morals  and  health.  A 
State  powerless  to  do  so  would  have  none  of  the  attributes  of 
sovereignty,  would  be  bereft  of  all  merit  to  respect,  and  could 
retain  no  hold  upon  the  citizen  by  affording  him  protection 
from  danger.^ 

§  148.  Marks  and  brands,  put  by  the  owners  thereof  upon 
their  cattle  to  distinguish  them  from  those  belonging  to  other 
persons,  are,  in  many  of  the  States,  so  far  a  recognized  institu- 
tion as  to  call  for  special  legislation  to  surround  the  system  with 
such  guards  by  providing  for  the  record  of  the  distinctive  marks 
and  brands,  by  acts  for  the  punishment  of  crime  in  those  who 
shall  kill  cattle  distinguished  by  special  marks  or  brands  with- 

1  "The  police  power  is  one  of  self-preservation,  to  be  exercised  by  the  State, 
in  its  sound  discretion,  for  the  interest  and  safety  of  its  citizens.  The  necessity 
of  the  law  is  one  of  legislative  determination.  The  character  of  the  remedy  in 
siich  case,  when  one  is  necessary,  must  be  settled  by  the  legislature.  Whether 
tlie  importation  of  the  cattle  should  be  permitted  on  conditions,  or  whether 
wholly  prevented,  were  matters  peculiarly  within  the  iirovince  of  the  law- 
naaking  power.  There  was  danger  to  be  ai^prehended  to  the  proi^erty  of  citizens 
of  the  State;  disease  lurked  upon  her  borders.  Shall  we  inquire  whether  she 
acted  wisely  orjiastly  ?  Shall  we  supervise  the  legislature,  and  substitute  our 
discretion  in  place  of  the  discretion  exercised  by  the  legislature?  This  we  can- 
not do  withoiit  touching  upon  the  rights  of  a  co-ordinate  department  of  the 
State  government.  We  are,  therefore,  of  opinion  that  the  legislature  had  the 
right,  by  virtue  of  the  police  power,  to  enact  the  law  in  question."  (Yeazel  i'. 
Alexander,  58  111.  254;  Somerville  v.  Marks,  Ibid,  371;  Davis  v.  Walker,  GO  111. 
542;  Newkirk  v.  Milk,  Ibid,  172;  City  v.  McCoy,  13  Mo.  238.) 


§  149  CATTLE.  108 

out  presei'\'mg  evidence  thereof,  and  by  divers  other  appropriate 
j)rovisions,  making  the  system  of  thus  marldng  cattle  a  distin- 
guishing clement  in  all  transactions  affecting  changes  of  owner- 
ship of  them  in  such  manner  as  to  guard  cattle  from  theft, 
which  might  otherwise  be  comparatively  safe  to  the  perpetrator. 

Generally,  the  owner  of  stock  Avho  has  adopted  a  distinctive 
mark  or  brand  for  his  cattle,  is  required  to  record  the  same  in 
the  local  records,  and,  when  he  makes  sales,  to  "  vent "  or 
counterbrand  by  reversing  the  mark  on  the  animals  disposed  of ; 
thus  the  purchaser  is  put  upon  his  guai'd.  The  first  mark  indi- 
cates the  adoption  of  it ;  the  "  vent,"  or  counterbrand,  shows 
that  from  the  original  owner,  at  all  events,  the  transfer  of  prop- 
erty has  been  regular  and  valid. 

Proper  penalties  to  carry  out  the  provisions  and  purpose  of 
these  acts  are  imposed  to  prevent  infringements  upon,  and  duly 
to  enforce  them  as  a  part  of,  the  respective  criminal  codes  of 
the  States  in  which  they  are  in  vogue.^ 

The  alteration  of  marks  or  brands  on  cattle,  fraudulently,  for 
purposes  of  theft  or  other  improper  interference  with  the  own- 
er's possession  of  them,  is  also  made  a  criminal  offense,  and  dealt 
with,  to  some  extent,  in  the  summary  manner  by  which,  as  a 
rule,  the  stealing  of  stock  has  been  punished  in  the  United 
States. 

§  149.  Drovers  of  cattle  who,  for  hire,  undertake  to  re- 
ceive animals  at  one  point  to  be  driven  by  them  to  another,  as 
from  the  farm  of  the  owner  to  market,  are  bound  to  use  the 
same  care  in  regard  to  the  cattle  intrusted  to  them  which  men 
of  ordinary  prudence  would  exercise  over  their  property  under 
the  same  circumstances.     The  farmer,  ordinarily,  would  be  un- 

1  Revised  Code  of  Ala.  (18G7)  p.  317;  Comp.  Laws  of  Ariz.  p.  79,  Sec.  65,  and  p. 
589;  Acts  of  Ariz.  (1873)  p.  92;  Rev.  Stats,  of  Col.  p.  450;  Political  Code  of  Cal. 
Sees.  31G7,  3172,  3184,  3185;  Tliompson's  Dig.  (Fla.)  pp.  419,  492;  Code  of  Ga.  (1873) 
pp.  243,  795,  829;  Laws  of  Idalio,  p.  Ill;  Nixon's  Dig.  K.  J.  4th  Ed.  16,  Sec.  11; 
Genl.  Stats.  N.  H.  220,  Sees.  16, 17;  Comp.  Laws  of  Nev.  Vol.  2,  460;  Stats,  of  Nev. 
1873,  99;  Laws  of  Montana,  1871-2,  284,  Sec.  78;  Wagner's  Mo.  Stats.  Vol.  2,  926; 
Stats,  at  Large  of  Minn.  Vol.  1,  234,  Sec.  84,  1002,  Sec.  118;  Rev.  Stats,  of  Maine, 
1871,  353,  027;  Genl.  Stats,  of  Kans.  1808,  1012;  Laws  of  Iowa,  Rev.  of  18(50,  259, 
752;  Stats,  of  Ind.  A'ol  1,  532;  Stats,  of  111.  Vol.  1,  178,  436,  262,  263;  Id.  Vol.  2, 
259;  Stats,  of  Tenn.  1871,  Vol.  1,  803,  804;  Laws  of  Texas,  2d  Ed.  467,  4(iS,  781, 
782;  Stats  of  Wis.  (1872)  73;  Laws  of  Wyoming,  2d  Ses.  90;  Id.  1809,  426,  427. 


199  ,  CATTLE.  §  149 

able,  profitably,  to  drive  stock  which  he  has  raised  any  consid- 
erable distance  to  a  place  of  sale,  and  Avould  not  desire  to  sell 
them — unaware  as  he  often  is  of  their  sale  value — at  his  farm. 
Hence,  the  employment  of  a  class  of  bailees  for  hii-e,  known 
as  drovers,  has  become  a  custom.  Both  parties  are  benefited 
by  the  bailment,  and,  while  extraordinary  diligence  and  care 
are  not  by  the  law  imposed  on  the  bailee,  as  he  would  be 
held  to  were  he  alone  benefited,  he  will  be  liable  if  he  fails  to 
use  such  care  as  a  prudent  man  would  exercise  over  his  own 
property  under  similar  circumstances,  and  by  reason  of  such 
neglect  the  cattle  are  lost.^ 

1  Mayuard  v.  Buck,  100  Mass.  40.  The  defendant  was  a  drover  engaged  in 
driving  cattle  from  Brigliton  to  various  points  between  that  place  and  Worces- 
ter. Plaintiff  intrusted  to  liim  a  ]>air  of  steers  to  drive  from  Brighton  to  North- 
borough  for  a  stixjulated  iirice.  On  the  way,  the  steers  were  lost  or  stolen,  and 
the  evidence  left  it  uncertain  whether  the  steers  were  in  defendant's  drove  when 
be  started,  or  were  stolen  from  his  yard,  at  Brigliton,  before  he  started.  The  de- 
fendant showed  that  he  left  his  yard  with  a  drove  of  one  hundred  and  twenty- 
three  cattle;  that  he  had,  to  help  him  drive,  two  men  and  a  boy;  that  about 
dusk,  at  a  point  where  the  road  was  near  a  railroad,  a  train  of  cars  passing  by 
frightened  and  stampeded  the  drove  into  the  adjoining  fields ;  that,  as  soon  as 
possible,  he  got  them  back  into  the  road,  and  drove  on  to  the  stopping-place  for 
the  night;  in  the  morning,  nine  animals,  including  jilaintiff's  steers,  were  found 
to  be  missing;  that  he  proceeded  with  his  drove,  delivering  cattle  along  the 
road,  tmtil  he  arrived  at  the  end  of  his  route  at  Worcester,  two  days  after  his 
departure  from  Brighton,  and  on  the  evening  of  the  second  day  after  the  dis- 
covery of  the  loss.  Early  on  the  morning  of  the  next  day — which  was  two  days 
after  he  became  aware  that  the  cattle  were  missing — he  returned  to  seek  them, 
but  was  unable  to  find  the  steers. 

Plaintiff  claimed  that  defendant  ought  to  have  gone  at  once,  on  discovery  of 
the  loss,  to  hunt  the  missing  stock;  but  defendant  showed  that,  to  have  done  so, 
he  must  have  detained  the  whole  drove,  at  a  great  expense  of  feeding,  and  that 
the  custom  among  drovers  engaged  in  driving  cattle  for  hire  over  this  road, 
and  others  from  Brighton,  whenever  it  happened  that  a  small  number  of  cattle 
strayed  from  a  drove  and  could  not  be  found  immediately,  to  proceed  with  the 
band  to  their  destination,  and  then  return  and  seek  for  such  stray  cattle.  The 
admissibility  of  evidence  showing  these  facts  was  questioned ;  but  the  Court,  in 
holding  it  competent  and  relevant,  said:  "  This  must  be  determined  with  regard 
to  all  tlie  circumstances  of  the  case.  Among  these  circumstances  are  the  diffi- 
culty of  pursuing  a  search  while  the  drove  in  his  charge  was  in  mid-route,  and 
the  expense  of  maintaining  the  drove  during  the  necessary  or  probable  delay. 
The  usual  practice  or  mode  of  iiroceeding  ordinarily  adopted  by  drovers,  under 
like  circumstances,  when  engaged  upon  routes  of  no  greater  length  from  the 
same  point,  would  have  some  bearing  upon  the  question  of  what  is  ordinary 
care.     It  is  involved  in  the  comparison  indicated  by  the  term  ordinary." 

The  plaintiff  further  contended  that  defendant  was  negligent  in  leaving  his 
yard  imwatched;  in  not  having  more  help  to  guard  the  stock  from  danger 
on  the  road;  in  approaching  the  railroad  when  a  train  was  about  to  pass;  in 
not  counting  the  cattle  when  he  left  Brighton  to  start  on  the  trip;  in  not  again 


§  149  CATTLE.  200 

counting  them  after  the  stampede  ;  and  in  not  sending  hack  word,  and  causing 
the  cattle  to  be  advertised  and  searched  for  as  soon  as  the  loss  was  discovered. 

Instructions  covering  the  views  of  the  respective  parties  were  requested  and 
given,  or  refused,  in  accordance  with  i  the  opinion  of  the  Court  in  which  the 
cause  was  tried.  A  verdict  for  plaintiff  was  the  result,  and,  on  appeal  there- 
from, the  opinion  of  the  Court,  which  sustained  the  judgment,  was:  "The  in- 
struction that  the  defendant  was  bound  to  use  the  same  care  in  regard  to  the 
cattle,  which  he  undertook  to  drive  for  hire,  that  men  of  ordinary  prudence 
would  exercise  over  their  own  jiroperty  under  the  same  circumstances,"  was 
correct,  and  in  accordance  with  numerous  authorities.  (Cayzer  v.  Taylor,  10 
Gray,  274 ;  Shaw  v.  Boston  &  Worcester  E.  E..  Co.  8  Gray,  45 ;  Shrewsbury  v. 
Smith,  12  Cush.  177;  Sullivan  v.  Scripture,  3  Allen,  564;  Giblin  v.  McMullen, 
Law  Rep.  2  P.  C.  317.)  The  degree  of  care  to  be  required  of  one  who  is  intrusted 
with  tlie  i:)roperty  of  another,  for  reward,  is  not  less  than  that  which  is  to  be  ex- 
pected of  one  who  deals  with  his  own  i^roperty.  If  the  first  instruction  asked 
for  is  based  iipon  a  recognition  of  such  an  obligation,  it  is  only  equivalent  to 
that  which  was  given  by  the  Court.  But  if  the  comparison  with  those  "  en- 
gaged in  driving  cattle  for  hire  "  was  intended  to  indicate  that  one  wlio  drives 
for  hire  is  bound  to  a  less  degree  of  care,  "  because  he  is  a  hireling,  and  careth 
not"  for  his  charge,  it  asked  for  a  iiile  which  has  never  been  recognized  either 
as  good  law  or  good  morals.  The  evidence  as  to  the  usual  practice  or  mode  of 
proceeding  ordinarily  adopted  by  drovers  was  held  at  the  previous  hearing  to  be 
admissible  ui)on  the  question  of  ordinary  care,  because  it  tended  to  show  what 
had  been  found,  by  the  experience  of  others,  to  be  most  judicious  or  expedient 
in  like  emergencies,  not  becatise  they  were  drovers  for  hire,  as  distinguished 
from  owners  driving  their  own  cattle. 

The  defendant  further  insisted  that  the  jury  should  be  instructed  that,  "  if  he 
did  do  the  things  that  drovers  of  common  prudence,  engaged  in  the  same  busi- 
ness, ordinarily  do,  he  was  not  guilty  of  such  negligence  as  will  make  him  lia- 
ble in  this  action."  But  this  is  not  the  legitimate  application  of  evidence  ad- 
mitted to  show  the  usual  practice  in  similar  cases.  The  usual  practice  is  made 
up  of  particular  instances  of  conduct,  by  the  limited  number  of  individuals 
similarly  engaged,  within  the  knowledge  of  the  witnesses  who  may  be  called  to 
testify.  That  which  is  admissible  in  evidence  is,  not  the  particulars,  but  what 
the  witnesses  state,  from  their  own  knowledge  of  those  particulars,  to  be  usual, 
or  the  course  ordinarily  pursued.  The  character  for  prudence,  of  those  whose 
conduct  or  acts  go  to  make  up  this  usual  practice,  is  not  required  to  be  sho-v^m. 
It  forms  no  part  of  the  inquiry.  The  effect  and  purpose  of  the  inquiry  is  to  aid 
the  jury  in  forming  their  judgment  of  Avhat  the  party  was  bound  to  do,  or  was 
justified  in  doing,  under  all  the  circumstances  of  the  case.  What  had  been  done 
by  others  previou.sly,  however  uniform  in  mode  it  may  be  shown  to  have  been, 
does  not  make  a  rule  of  conduct  by  which' the  jury  are  to  be  limited  and  gov- 
erned. It  is  not  to  control  the  judgment  of  the  jury,  if  they  see  that  in  the  case 
under  consideration  it  is  not  such  conduct  as  a  prudent  man  would  adopt  in  his 
own  affairs,  or  not  such  as  a  due  regard  to  the  obligations  of  those  employed  in 
the  affairs  of  others  would  require  them  to  adopt.  It  is  evidence  of  wliat  is 
proper  and  reasonable  to  be  done,  from  which  the  jury  are  to  determine  Avhether 
the  conduct  in  question  in  the  case  before  them  was  proper  and  justifiable.  We 
think  tlie  instruction  asked  for,  in  this  particular,  was  not  such  as  should  have 
been  given. 

The  instruction  asked  for,  to  the  effect  that  "the  defendant  was  not  obliged 
to  make  any  outlay  disproportionate  to  the  compensation  he  received,  to  recover 
cattle  that  had  strayed  from  the  drove  without  his  negligence,"  and,  therefore, 
that  the  price  he  received  was  "  to  be  taken  into  account "  upon  the  question  of 


201  CATTLE.  §  150 

As  to  what  is  such  care  must  be  ascertamed  by  a  fair  con- 
sideration of  the  circumstances  in  each  case.  Ordinary  care 
must  be  measured  by  the  character  and  exposures  of  the  busi- 
ness, and  the  degree  required  is  higher  where  a  large  amount 
of  property  is  involved  than  in  other  cases.  For  hire,  the  bailee 
covenants  to  do  for  his  employer  what,  othcrAvise,  he  would  do 
for  himself — to  represent  him  in  the  matter  ;  and,  while  he 
might  not  be  expected  to  entertain  the  same  degree  of  feeling 
of  interest  in  the  animals  which  he  would  who  had  raised  them, 
or  to  whom  they  belong,  he  should  be  impressed  with  such  care 
and  responsibility  as  is  commensurate  with  the  value  of  the 
stock. 

§  150.   The  right  to  graze  cattle  upon  open  commons  is 

not  of  so  absolute  a  character  as  in  all  cases  to  exempt  the 
owner  of  them  from  risk  of  such  accidents  as  are  incident  to 
the  circumstances.^ 

Thus,  where  the  statutes  do  not  compel  railroad  companies  to 
fence,  it  would  be  unjust  to  put  upon  them  the  whole  burden  of 
losses  which  are  liable  to  occur  by  injury  to  animals  straying 
upon  the  track.  Both  the  company  and  owner  of  the  animals 
are  in  the  proper  exercise  of  their  calling,  and  are  equal  in  the 
eye  of  the  law ;  to  impose  upon  one  party  the  cost  of  making 

due  diligence,  was  inadmissiWc.  The  price  is  iindoubtedly  gi'aduated  by  the 
well  known  risks  of  the  business,  and  accepted  in  A'iew  of  those  risks.  The 
obligation  to  seek  the  recovery  of  straying  cattle  does  not  rest  upon  the  ground 
that  that  special  service  is  paid  for  in  consideration  of  the  original  contract, 
and,  as  such,  is  covered  by  its  consideration.  When  an  emergency  occurs  to 
bring  that  obligation  into  operation,  and  make  it  onerous,  he  is  not  justified  in 
any  lack  of  faithful  performance,  because,  in  that  i^articular  event,  his  com- 
pensation has  iiroved  inadequate  to  the  burden. 

1  Isbell  V.  K  Y.  &  N.  H.  R.  R.  Co.  2?  Conn.  393  ;  Daly  v.  R.  R.  Co.  2G  Conn. 
591  ;  Brown  v.  Lynn,  31  Penn.  St.  510  ;  R.  R.  Co.  v.  Terry,  8  Ohio  St.  570;  R.  R. 
Co.  V.  Matthews,  21  Ohio  St.  586. 

There  appears,  ujion  an  examination  of  the  cases,  a  liability  to  criticism  in 
the  subject  of  trespass,  being  a  disregarder,  and  in  treating  the  matter  as 
though  the  animal  were  rightfully  in  the  i)lace  where  the  injury  occurred, 
thereby  making  the  whole  question  one  merely  of  negligence,  and  considering 
the  former  of  no  moment,  unless  it  may  have  some  effect  in  supporting  the 
existence  of  the  latter,  or  they  turn  upon  some  point  which  avoids  due  consid- 
eration of  the  iiroposition,  that  while  the  company  may  owe  special  duty  to 
those  through  whose  lands  their  road  runs,  they  are  not,  in  all  cases,  similarly 
bound  to  all  who  allow  their  animals  to  run  at  large.  See  opinion  of  Hall,  J.  in 
Keefe  v.  R.  R.  Co.  Jan.  Term,  1875,  Sup.  Ct.  ]Minn. 

Knight  V.  Albert.,  6  Barr,  472;  R.  R.  Co.  v.  Hunnewell,  8  Wright,  378. 


§  150  CATTLE.  202 

good  tlie  damage  done  would  be  to  render  the  ownership  of 
property  such  as  railroads  especially  annoying  and  hazardous 
— would  be  discriminating  and  partial.^ 

1  In  Caulkins  v.  Matthews,  5  Kansas,  191,  the  plaintiff  allowed  his  horse  to  go 
at  large.  The  horse  wandered  on  the  uninclosed  land  of  the  defendant,  and  fell 
into  an  old  well,  which  caused  its  death.  The  Court  below  charged  the  jury- 
that  "the  defendant  was  liable,  if  negligent."  Judgment  was  reversed,  on  the 
ground  that  the  defendant,  at  most,  could  only  be  held  liable  for  gross  negli- 
gence. 

In  Railway  Co.  v.  Rollins,  5  Kansas,  1G7,  the  plaintiff  allowed  his  cattle  to  graze 
upon  the  open,  uninclosed  jirairie,  near  the  defendant's  track — the  land  on  both 
sides  of  which  belonged  to  the  defendant — and  they  strayed  uiion  the  track  and 
were  killed  by  the  train.  The  Coiu't  says :  "  Ordinarily,  when  a  i^er-son  allows 
his  cattle  to  run  on  another's  land,  without  the  owner's  consent,  the  owner  of  the 
land  is  not  liable  for  any  injury  to  the  cattle  received  whilst  there,  unless  the 
injuries  are  caused  through  his  gross  negligence.  But  when  any  jierson  know- 
ingly allows  his  cattle  to  run  on  the  land  of  a  railroad  company,  in  the  vicinity 
of  a  railroad  track,  he  can  recover  for  injuries  done  to  the  cattle  only  through 
the  most  gross  and  wanton  negligence  of  the  railroad  company." 

There  is,  possibly,  some  little  confusion  of  the  terms  in  the  last  two  cases, 
bvit  we  are  to  understand  by  gross  negligence  such  a  degree  of  willful  negli- 
gence as  would  lead,  in  the  law,  to  the  imijlication  of  willfulness,  or  wantonness. 
(Keef  e  v.  Railway  Co.  Sup.  Court  ilinn.  Jan.  Term,  1875. ) 


203  LAWS    RELATING   TO    SHEEP.  S  151 


CHAPTEE  Xin. 

LAWS  KELATIXG  TO  SHEEP. 

§  151.  Laws  for  iirotection  of  sheep  from  dogs. 

§  152.  Measure  of  damage  done  to  sheep  by  dogs. 

§  153.  Ignorance  of  vicious  habits  of  dogs  no  defense. 

§  154.  Liability  of  owners  where  several  dogs  attack  sheep. 

§  155.  Soundness  of  sheep ;  infectious  diseases. 

§  156.  Protection  of  slieep  from  infectious  diseases. 

§  157.  Duty  of  shepherd  and  agistor  of  sheep. 

§  158.  Sheep  taken  on  shares. 

§  159.  Eights  of  o\vner  and  bailee  of  sheep. 

§  160.  Wool,  iDeculiar  duties  of  vendor  of. 

§  151.   Laws  for  protection   of   sheep  from  dogs. — By 

the  statutes  of  many  of  the  States,  sheep  are  especially  guarded 
from  the  ravages  of  their  natural  enemies,  dogs.  That  sheep 
may  be  thus  protected,  it  is  made  lawful  to  destroy  dogs  which 
are  found  killing  or  worrying  them.  The  persons  who  kill  the 
dogs  are  held  free  from  suit  or  prosecution  for  so  doing,  and 
the  owner  of  the  offending  dog  is  held  answerable,  not  only  for 
what  damage  has  really  been  done,  but  often  for  a  larger 
amount,  by  way  of  a  preventive  against  harboring  such  dogs 
as  manifest  a  disposition  to  injure  sheep. 

In  some  of  the  States,  the  protection  of  sheep  is  made  a  matter 
of  quasi-]3o\ice  regulation ;  the  county  authorities,  by  proper 
licenses,  restrict  the  keeping  of  dogs  to  such  persons  as,  having 
animals  of  that  description  which  they  deem  of  enough  value  to 
induce  them  to  answer  for  their  acts,  will  hold  themselves  in 
readiness  to  respond,  in  damages,  for  the  misdeeds  of  their  dogs 
in  worrying  or  killing  sheep.^ 

1  In  Alabama,  any  person  who  keeps  a  dog  which  has  been  known  to  kill  or 
worry  sheep,  is  liable  to  him  who  owns  sheep,  for  double  the  amount  of  damage 
done  to  the  sheej)  by  his  dogs ;  any  person  may  kill  the  dog  so  found  worrying 
or  killing  sheep,  and  cannot  be  punished  or  made  civilly  liable  for  doing  so ; 
and  if  any  person  keeps  or  harbors,  and  allows  to  run  at  large,  a  dog  which  has 


§  151  LAWS    RELATING   TO    SHEEP.  204 

by  hijn  iDeen  known  to  kill  or  worry  slieep,  lie  is  guilty  of  a  misdemeanor,  and 
liable  to  be  fmed  therefor  not  more  than  lifty  dollars.  (Revised  Code  of  Al;v 
bama,  1887,  p.  320;  Stats,  of  Alabama,  1872-3,  p.  131.) 

The  Statutes  of  California  were,  in  effect,  similar  to  those  of  Alabama,  until 
the  enactment  of  the  codes,  1872. 

The  appropriate  code  (Political)  does  not,  in  ex^iress  terms,  or  by  fair  implica- 
tion, continue  in  force  these  provisions  for  the  protection  of  sheep,  and  no  new 
enactment  takes  their  place.  (Stats.  Cal.  1870,  p.  223;  Ibid,  1866,  225;  Political 
Code,  Sees.  18,  19.) 

In  Connecticut,  when  a  person  has  suffered  damage  by  dogs  worrying  or  kill- 
ing his  sheep,  he  gives  notice  to  the  selectmen  of  the  town  in  which  the  damage 
has  been  done,  and  the  selectmen  bring  suit  for  him  against  the  owner  or  har- 
borer  of  the  offending  dog;  and  unless  the  damage  is  made  good  by  this  suit, 
the  town  becomes  liable  to  the  owner  of  the  sheep  for  such  damage.  To  make 
provision  for  such  liabilities  all  dogs  are  licensed,  and  the  revenue  from  these 
licenses  is  held  as  a  fund  from  which  to  meet  this  class  of  liabilities.  ( Stats,  of 
Conn.  Rev.  18G6,  p.  668;  Stats,  of  Conn.  1866,  p.  109.) 

In  Georgia,  by  special  statute,  the  owners  of  dogs  which  worry  or  kill  sheep 
are  made  liable  for  such  damage.     (Code  of  Georgia,  1873,  Sec.  2965.) 

By  the  laws  of  Idaho  and  Minnesota,  any  jierson  may  kill  a  dog  Avhich  is 
found  worrying,  wounding,  or  killing  sheeji,  and  no  prosecution  or  action  of  any 
kind  lies  against  him  for  the  dog.  (Laws  of  Idaho,  4th  Session,  p.  101;  5th  Ses- 
sion, p.  165 ;  Stats,  at  Large  of  INIinn.  p.  593. ) 

In  New  Hampshire  and  New  Jersey,  the  towns  are  liable,  under  a  system 
much  like  that  in  vogue  in  Connecticiit,  and  a  tax,  by  license  upon  dogs,  is  im- 
IDOsed  to  meet  such  liabilities;  the  owner  or  harborer  of  the  dog  which  has 
caused  the  damage  may  be  sued  by  the  to%vn  authorities  for  the  injuries  suffered 
from  the  ravages  of  his  dog,  or  of  one  which  he  permits  to  remain  ujjon  Ms 
premises.  (Nixon's  Digest  of  Laws  of  New  Jersey,  1709-1868,  pp.  16-23;  Gen. 
Stats,  of  N.  H.  pp.  219,  220. ) 

In  New  Castle  County,  Delaware,  it  is  lawful  to  kill  dogs  addicted  to  worry- 
ing sheep,  and  a  list  of  all  dogs  within  the  county  is  kejit ;  all  dogs  are  to  be 
either  licensed  or  destroyed,  and  from  the  results  derived  by  licensing  dogs 
the  county  authorities  make  good  the  damages  suffered  by  sheep  being  wounded 
or  killed  by  dogs.     (Laws  of  Del.  12,  pp.  252-254,  282;  13,  pp.  135-138.) 

In  Georgia,  the  owner  or  harborer  of  a  dog  which  causes  damage  by  worry- 
ing or  killing  slieep  must  pay  for  all  such  damage.  (Code  of  Georgia,  1873,  Sec. 
2914.) 

By  the  statute  of  ]\Iinnesota  (Bissell,  1873,  Vol.  1,  593)  it  is  provided  that  any 
person  may,  without  incurring  liability,  civil  or  criminal,  kill  a  dog  found  fret- 
ting, injuring,  or  killing  lambs,  or  sheep;  and  he  who  owns  or  has  in  his  posses- 
sion any  dog  which  kills,  wounds,  or  worries  sheep  or  lambs  "shall  be  liable  for 
the  value  of  such  sheep  or  lambs  to  the  owner  thereof,  without  proving  notice 
to  the  owner  or  possessor  of  such  dog,  or  knowledge  by  him  that  his  dog  was 
mischievous,  or  disposed  to  kill  slieep." 

In  Michigan,  any  person  may,  without  rendering  himself  liable  either  crim- 
inally or  by  civil  action,  kill  a  dog  that  he  may  see  chasing,  worrying,  wound- 
ing, or  killing  any  sheeii,  lambs,  swine,  cattle,  or  other  domestic  animals,  out  of 
the  inclosure  or  immediate  care  of  the  owner  or  keeper  of  the  sheep,  etc. 

The  owner  or  keeper  of  a  dog  which  assaults,  bites,  or  otherwise  injures  sheep, 
is  liable  in  double  damages  therefor  to  liiin  who  owns  the  sheei"),  and  it  is  not 
essential  to  the  recovery  that  it  be  shown  that  he  to  whom  the  dog  belonged,  or 
who  harbored  him,  knew  of  his  propensity  to  do  such  damage  or  mischief;  but 
plaintiff  cannot  recover  more  than  five  dollars  costs.  If  the  owner  or  keeper  of 
a  dog  wliicli  has  been  chasing,  worrying,  wounding,  or  killing  sheep,  lambs, 


205  ■    LAWS    RELATING   TO    SHEEP.  §  151 

Seville,  or  cattle,  which  belong  to  another  person,  he  must  kill  the  dog  after  hav- 
ing received  notice,  in  \vi'iting,  of  his  having  done  said  acts,  and  in  default  of 
his  so  killing  him,  or  causing  him  to  be  killed,  the  owner  or  harborer  of  the  dog 
is  liable  to  be  lined  three  dollars,  and  a  further  continuing  fine  of  one  dollar  and 
a  half  for  each  forty-eight  hours  which  the  dog  shall  live  after  the  lapse  of  the 
first  two  days  after  said  notice  is  given ;  and  upon  notice  given  to  the  supervisor 
of  any  to^miship  that  such  an  offense  has  been  committed  by  any  dog,  the  su- 
pervisor may,  and  it  is  his  duty  to,  bring  the  action  last  above  mentioned  for 
and  in  behalf  of  the  township.  (Compiled  laws  of  Michigan,  1871,  pp.  G71,  G72.) 
In  Massachusetts,  all  dogs  are  registered,  numbered,  and  described  annually; 
a  license  tax  is  imposed  and  collected,  and  a  tag  or  marked  collar,  showing  such 
number,  must  be  kept  on  the  dog. 
Dogs  not  licensed  are  to  be  killed  by  the  town  or  city  aiithorities. 
Any  person  who  siiffers  damage  by  his  sheep  being  injured  by  dogs,  on  giving 
notice  and  making  due  proof  to  the  local  authorities,  from  tliem  receives  las  com- 
pensation, unless  he  prefer  to  bring  his  action  directly  against  the  owner  of  the 
dog,  in  which  case  he  may  do  so.  (Supplement  to  Eev.  Stats,  of  Mass.  1867- 
71,  pp.  545-8.) 

In  Maryland,  by  the  general  statutes,  (Code  of  18G0,  p.  505)  it  is  provided 
that  the  owner  of  sheep  shall  give  notice  to  him  who  has  a  dog  whicli  has  been 
seen  to  worry  sheep,  and  thereupon  it  becomes  the  duty  of  him  to  whom  the  dog 
belongs  to  kill  him ;  if  he  fail  to  do  so,  the  person  whose  sheep  have  been  injured 
may  kill  the  dog,  and  recover  double  damages  from  him  who  has  failed  to 
kill  the  dog  which  belongs  to  him,  and  has  so  offended. 

In  New  Hampshire,  each  town  has  a  license  system  by  which  the  registry  of 
all  dogs  therein  is  kept,  and  a  special  fund  is  raised  to  pay  damages  suffered  by 
the  owaiers  of  sheep  by  the  depredations  of  dogs,  and  the  owner  of  the  dog  is 
moreover  liable  in  double  the  amount  of  damage  Avhich  has  been  done  by  his 
dog  in  worrying  sheep.     (General  Stats,  of  New  Hampshire,  p.  218.) 

By  the  act  for  the  preservation  of  sheep  in  New  Jersey,  passed  April  14th, 
1847,  every  person  who  keeps  a  dog  six  months  is  taxed  therefor,  and  on  being 
notified  that  his  dog  has  been  found  worrying  sheep,  he  must  kill  him  within 
twenty-four  hoirrs ;  or  failing  to  do  so,  forfeit  ten  dollars  and  costs  of  suit,  and 
pay  treble  damages.  (Nixson's  Digest,  4th  Edition,  p.  14.)  But  in  18(59,  it  was 
provided,  "that  the  protection  afforded  by  this  act  to  owners  of  sheep,  shall  only 
extend  to  residents  or  tax-payers  in  the  township"  where  the  damage  was  done. 
(Laws  of  18G9,  p.  97.) 

In  New  York,  any  person  may  kill  a  dog  found  worrying  sheep ;  in  each  of  the 
counties,  except  that  of  New  York,  all  dogs  are  taxed,  and  the  money  resulting 
from  these  taxes  is  kept  as  a  fund  to  satisfy  damages  done  by  dogs  to  sheep; 
moreover,  the  fence-viewers  of  each  town  are  made  a  special  board  of  examin- 
ers to  establish  the  amount  of  damage  done  by  any  dog  to  sheep ;  the  owner  or 
the  harborer  of  the  dog  is  made  liable  to  an  action  by  the  owner  of  the  sheep  for 
damages,  and  the  report  of  the  board  of  town  fence-viewers  is  made  primary 
evidence  of  the  facts  and  amount  of  damage  done.  (New  York  Statutes  at 
Large,  2d  Ed.  Yol.  1,  p.  G55.) 

By  the  Eevised  Statutes  of  Ohio,  (Swan  &  Critchfield,  Yol.  1,  p.  71)  any  per- 
son may  destroy  a  dog  found  worrying  sheep. 

In  Oregon,  similar  statutes  permit  the  killing  of  dogs  found  worrying  sheep, 
and  make  the  person  who  owns  the  dog  liable  for  the  damage  done  by  his  dog. 
(General  Laws  of  Oregon,  [Deady]  p.  G78.) 

Laws  similar  in  effect  prevail  in  Pennsylvania ;  dogs  may  be  killed  by  any 
person  who  finds  them  injuring  sheep,  and  the  owner  of  the  dog  is  liable  for  the 
damage  done  by  his  dog  to  sheep.    (Laws  of  Pennsylvania,  [Dunlop]  p.  251.) 


§  152  LAWS    EELATING   TO    SHEEP.    ■  206 

§  152.  Measure  of  damage  done  to  sheep  by  dogs. — 
The  amount  of  damage  done  to  sheep  by  dogs  is  sometimes 
ascertained,  and  paid  by  the  town  officers  acting  for  the  public 
under  special  statutes,  some  of  which — notably  that  of  New 
Hampshire — are  peculiarly  severe  in  dealing  with  the  owner  of 
the  dog  for  damages  done  by  it  to  sheep. 

The  injured  party  first  seeks  redress  at  the  hands  of  the 
selectmen  of  the  town ;  and,  upon  making  proof  of  the  nature 
and  extent  of  his  loss,  the  town  authorities  pay  it ;  and  after- 
ward the  town,  in  an  action  of  assumpsit  against  the  keeper  or 
o^Tner  of  any  dog  concerned  in  doing  the  damage  or  occasion- 
ing the  loss,  may  recover  the  full  amount  paid  to  him  Avho 
owned  the  sheep. 

This  system  has  been  found  to  be  faulty,  in  that  the  main 
facts  of  the  controversy,  the  amount  and  character  of  the  dam- 
age done,  are  established  without  the  party  who  is  ultimately 
liable  having  been  heard  at  all. 

The  ex  parte  determination  of  the  selectmen  is  by  the  act 
made  conclusive  on  the  owner  or  keeper  of  the  dog,  as  to  the 
amount  of  the  damage  done,  and  consequently  as  to  the  extent 
of  his  liability. 

Taxes  are  laid  upon  clogs,  and  the  revenue  thence  derived  is  appropriated  to 
pay  damages  done  to  sheep  by  dogs.  (Laws  of  Pennsylvania,  1873,  pp.  454,  489, 
648;  Laws  of  1872,  pp.  240,  286,  415,  671,  820,  1105.) 

The  several  townships  of  the  various  counties  are,  by  distinct  acts,  made  sub- 
ject to  provisions  in  effect  as  above  detailed ;  but,  from  the  large  number  of 
statutory  enactments  in  the  jiremises,  it  is  not  possible  here  specifically  to  refer 
to  each  one. 

In  Rhode  Island,  the  law  is  such  that,  for  the  first  time  a  dog  worries  sheep, 
the  owner  may  recover  damages  therefor  from  him  who  harbors  or  OAvns  the 
dog;  if,  after  such  first  offense,  the  dog  still  lives  and  injures  sheep,  his  owner 
is  liable  for  double  damage,  and  the  Court  wherein  the  action  for  damages  is 
tried  may  order  the  dog  to  be  killed.  (Revised  Statutes  of  Rhode  Island,  p. 
206.)  By  a  subsequent  statute,  (1872,  pp.  200,  203)  a  provision  is  made  for  the 
licensing  of  dogs,  and  appropriation  of  the  funds  resulting  therefrom  to  pay- 
ment of  damages  to  sheep  done  by  dogs. 

The  law  of  Tennessee  permits  any  person  to  kill  a  dog  which  injures  sheep, 
and  makes  the  owner  of  the  dog  liable  for  damages  done  by  the  dog.  (Statutes 
of  Tennessee,  Vol.  1,  Sec.  1861.) 

By  the  code  of  "West  Virginia,  (1868,  p.  240)  a  special  tax  is  laid  upon  dogs, 
and  the  money  realized  therefrom  is  appropriated  to  paying  for  the  damage 
done  to  sheep  by  dogs;  and  any  person  who  harbors  a  dog  known  to  be  addicted 
to  the  habit  of  worrying  sheep,  is  deemed  guilty  of  a  misdemeanor,  and  liable  to 
be  punished  therefor  by  fine  of  not  less  than  twenty  dollars. 


207  LAWS    RELATING    TO    SHEEP.  §  153 

This  characteristic  affects,  to  a  greater  or  less  extent,  all  those 
statutes  by  which  the  town  authorities  are  made  primarily  liable, 
and  it  is,  to  say  the  least,  questionable  how  far  such  statutes  arc 
constitutional  and  capable  of  being  enforced.^ 

§  153.  Ignorance  by  o-wner  of  propensity  of  his  dog  to 
worry  sheep. — No  scienter  is  necessarily  to  be  alleged  or  proved 
in  actions  brought  to  recover  damages  caused  by  dogs  injuring 
sheep ;  the  farmer,  or  other  person  who  keeps  a  dog,  does  so  on 
the  terms  of  paying  for  the  damage  he  may  cause  by  worrying 
sheep  ;  there  is,  by  the  law,  imposed  on  him  wdio  harbors  a  dog, 
a  contract  to  answer  for  his  misdeeds  ;  all  persons  are  presumed 
to  know  the  law,  and,  by  implication,  he  who  keeps  a  dog 
agrees  to  respond  in  damages  for  his  wrongful  acts.^ 

Knowledge,  on  the  part  of  the  owner  of  a  dog,  of  the  fact 

1  In  East  Kingston  v.  Towle,  48  IST.  H.  57,  this  proposition  was  discussed,  and 
the  constitutionality  of  the  act  was  one  of  the  main  issues. 

The  defendant  owned  a  dog,  and  the  sheep  were  killed.  The  person  to  whom 
the  sheep  lielonged  made  his  showing  of  the  amount  of  damage,  received  pay- 
ment therefor,  and  thereupon  the  Board  of  Selectmen  brought  their  action 
against  the  owner  of  the  dog  alleged  to  have  been  concerned  in  killing  the 
sheep.  The  defendant  demurred,  on  the  ground  that  the  statute  was  unconsti- 
tutional. 

The  Court  sustained  the  demurrer,  and  held  that  the  law,  so  far  as  it  under- 
takes to  charge  the  owner  with  the  amount  of  damage  done  by  his  dog,  as  fixed 
by  the  selectmen  of  the  town,  without  an  opportunity  to  be,  heard,  is  unconsti- 
tutional, because  it  is  contrary  to  natural  justice,  and  not  within  the  scope  of 
legislative  authority ;  and  also  because  it  is  in  violation  of  the  provision  in  the 
bill  of  rights  which  secures  the  right  of  trial  by  jury  in  all  controversies  con- 
cerning property,  except  in  cases  where  it  had  heretofore  been  otherwise  used 
and  practiced. 

But  it  was  also  held  that  the  legislatures  have  the  power  to  make  towns  liable 
for  damage  done  within  their  limits  by  dogs,  and  to  give  towns  a  right  of  action 
to  recover  the  actual  damage  from  the  owners  of  the  dogs ;  but  the  action  must 
be  tried  by  the  mode  of  procedure  of  other  damage  cases.  The  defendant  is  en- 
titled to  have  heard  upon  the  trial  all  of  his  defenses ;  to  show,  if  he  can,  that  it 
was  not  his  dog  which  did  the  harm,  and  to  rebut  the  showing  of  the  one  who 
owned  the  sheep  of  the  amount  of  damage  done. 

2  The  common-law  rule  is  not  as  given  in  the  text;  by  the  English  law,  the 
owner  of  a  dog  is  liable  for  mischief  done  by  him,  if  he  had  notice  of  the  ani- 
mal's vicious  propensities ;  but  in  America,  this  liability  is  so  generally  enlarged 
by  statute,  that,  practically,  the  common-law  rule  is  set  aside,  and  a  man  keeps 
a  dog  at  his  peril,  against  the  natural  propensity  which  dogs  have  to  destroy 
sheep.  (Woolf  v.  Chalker,  31  Conn.  121;  Fish  v.  Scutt,  21  Barb.  3.33;  Job  v. 
Harlan,  13  Ohio  St.  485;  Kerr  v.  O'Connor,  03  Penn.  St.  341;  Sedgwick  on  Meas- 
ure of  Damages,  Sec.  570;  Campbell  v.  BroAvn,  1  Grant  [Pa.]  Cases,  82;  Brewer 
V.  Crosby,  11  Gray,  29;  Pressy  v.  Wirth,  3  Allen,  191:  Smith  v.  Montgomery,  52 
Me.  178;  Ome  v.  Pvoberts,  51  N.  H.  510.) 


§  154  LAWS    RELATING    TO    SHEEP.  208 

that  the  (log  has  a  vicious  disposition,  or  that  he  Avoukl  worry 
sheep,  need  not,  as  a  general  rule,  he  proved  in  America,  in 
order  to  charge  the  owner  with  the  damage  done  by  his  dog; 
although  the  rule  in  England  still  appears  to  be  that  there 
such  knowledge  must  be  charged  and  proved  before  he  to  whom 
the  doiX  belon[i|;s  can  be  made  liable.^ 

§  154.  Several  dogs  attacking  sheep,  liability  of  o-wn- 
ers. — ^Vlien  two  or  more  doirs  make  the  assault  t02;ethcr  and 
do  the  damage  jointly,  the  liability  of  the  several  owners  of  the 
dogs  becomes  a  question  likely  to  arise. 

From  the  majority  of  the  decisions  the  rule  is  to  be  deduced, 
that  where  several  dogs,  belonging  to  different  owners,  unite  in 
doing  mischief,  an  action  against  all  the  owners  jointly  does  not 
lie ;  but  each  person  is  liable  for  the  damage  done  by  his  own 
animak- 

In  ascertaining  just  what  damage  was  done  by  each,  the  jury 
will  regard  all  the  facts  and    circumstances  shown  ;   but  in  the 

1  So  laeld  by  Lord  Coleridge,  C.  J.,  and  Keating,  J.,  in  Aiiplebee  v.  Percy,  Law 
Eep.  9  C.  P.  C47.  Brett,  J.,  dissenting,  not  to  tlie  main  projoosition,  but  to  the 
api^lication  of  the  rule  to  the  case  at  bar. 

^  Ptussel  V.  Tomlinson  &  Hawkins,  2  Conn.  206.  The  action  was  damages  for 
twenty-eight  sheeji,  killed  by  the  two  dogs  which  belonged  to  the  defendants. 
The  defendants  did  not  own  the  dogs  jointly:  one  defendant  owned  one  dog,  the 
other  defendant  owned  the  other  dog.  The  Court.,  at  nisi  prius,  instructed  the 
jury  that  if  they  should  find  that  the  plaintiff's  sheep  were  worried  and  killed 
by  the  dogs,  they  must  find  both  the  defendants  guilty,  and  award  damages 
against  them  and  in  plaintiff's  favor;  a  A'erdict  for  plaintiff  was  the  result,  and 
defendants  appealed,  assigning  this  instruction  as  misdirection.  The  Sujireme 
Court  reversed  the  judgment,  and  held  that  '"two  or  more  persons  owning  dogs, 
severally,  are  not  jointly  liable  for  acts  of  mischief  done  by  such  dogs  jointly." 

In  the  opinion.  Swift,  C.  J.,  says:  "Owners  are  responsible  for  the  mischief 
done  by  their  dogs;  biit  no  man  can  be  liable  for  the  mischief  done  by  the  dog 
of  another,  unless  he  had  some  agency  in  causing  the  dog  to  do  it.  AVhen  the 
dogs  of  several  persons  do  mischief  together,  each  owner  is  only  liable  for  the 
mischief  done  by  his  own  dog;  and  it  would  be  reimgnant  to  the  plainest  jwin- 
cijiles  of  justice  to  say  that  the  dogs  of  diif erent  persons,  by  joining  in  mischief, 
could  make  their  owners  jointly  liable.  This  would  be  giving  them  a  iiower  of 
agency  which  no  animal  was  ever  supposed  to  possess. 

"  It  is  true  that  there  may  be  some  difficulty  in  ascertaining,  in  separate  ac- 
tions, the  quantum  of  damage  done  by  the  dog  of  each;  but  this  can  be  no 
reason  wliy  one  man  should  be  accountable  for  mischief  done  by  the  dog  of 
another." 

'\'an  Steenburgh  r.  Tobias,  17  Wend.  562;  Auchmuty  r.  Horn,  1  Denio,  495. 
In  this  case  it  was  also  held  that  the  farmer,  whoso  hired  man  had  a  dog  which 
followed  him  aboiit,  could  not  be  held  liable  for  the  damage  done  by  his  man's 
dog.  (Denny  v.  Cowell,  9  Ind.  72;  Partenheimer  v.  Van  Orden,  20  Barb.  [X.  Y.] 
479.) 


209  LAWS    RELATING   TO    SHEEP.  §  155 

absence  of  any  proof  as  to  how  much  damage  was  done  by 
each  of  several  dogs  implicated  in  the  attack,  the  presumption 
is  that  one  did  as  much  damage  as  another ;  ^  but,  to  rebut  this 
presumption,  the  jury  may  regard  the  respective  size,  ferocity, 
and  known  habits  in  the  matter  of  killing  sheep,  of  each.^ 

The  converse  of  the  general  rule  above  given  is  in  a  late 
case  (1869)  held  to  be  the  law,  by  the  Suj)reme  Court  of  Penn- 
sylvania. 

In  this  decision,  the  learned  judge  (Thompson,  C.  J.)  who 
delivers  the  opinion  says  that  "  all  the  owners  of  several  dogs, 
which,  together,  at  one  and  the  same  time,  kill  and  wound  a 
flock  of  sheep,  are  all  answerable  for  the  damage  "  ;  that  "  each 
one  is  answerable  for  the  whole  damage  done  in  which  his  dog 
is  jointly  engaged."^ 

But  this  case  is  at  variance  with  Avhat  appears  to  have  be- 
come the  settled  rule,  is  moreover  a  construction  of  the  law 
of  but  one  State,  and  the  weight  of  authority,  as  above  men- 
tioned, is  opposed  to  the  reasoning  therein. 

§  155.  Soundness  of  sheep — Infectious  diseases. — The 

diseases  to  which  sheep  are  liable  have  caused  judicial  investi- 
gations and  decisions  as  to  warranty,  sale,  and  covenants  as  to 
soundness,  the  controlling  principles  of  Avhich  have  been  given 
in  the  chapters  on  sale,  warranty,  and  soundness. 

Such  of  the  diseases  to  Avhicli  sheep  are  liable  as  are  infec- 
tious, demand,  however,  special  notice,  because  of  the  possi- 
bility that,  by  the  sale  of  animals  which  are  affected  by  dis- 
eases of  that  character,  the  vendor  may  become  liable  in  heavy 
damages. 

The  general  rule  of  the  measure  of  damages  is,  that  he  who  is 
injvired,  in  his  action  against  him  who  has  caused  the  injury,  is 
entitled  to  such  damages  as  necessarily  and  naturally  flow  from 
the  act  complained  of.^ 

1  Partenheimer  v.  Van  Orden,  20  Barb.  479. 

2  Wilbiir  V.  Hubbard,  35  Barb.  303. 

3  Kerr  v.  O'Connor,  63  Penn.  Stats.  341. 

4  "If  sheep  are  sold,  with  a  warranty  that  they  have  entirely  recovered  from 
a  disease  they  previously  had,  or  that  they  would  recover  from  the  same,  and 
such  warranty  is  broken,  the  purchaser,  when  sued  upon  the  note  given  for  the 
price,  if  he  has  kept  the  sheep,  will  have  the  right  to  have  his  damages  deducted 

Farm — 14. 


§  156  LAWS    RELATING   TO    SHEEP.  210 

Applying  this  rule  to  the  sale  of  sheep  Avhich  are  affected 
by  a  malady  Avhich  is  infectious,  Avhere  the  sheep  which  have 
the  disease  are  to  be  mixed  with  others  which  are  sound,  the 
damage,  if  the  flock  become  infected,  is  not  the  mere  difference 
between  the  value  of  a  diseased  sheep  and  a  healthy  one,  but  the 
loss  sustained  by  communicating  the  disease  to  the  whole  flock. ^ 

§  156.  Law.s  for  protection  of  sheep  from  infectious 
diseases. — Where  there  are  statutes  providing  that  any  person 
who  suffers  sheep  owned  by  him,  and  known  to  be  infected  by 
contagious  disease,  to  run  at  large,  or  who  keeps  them  in  any 
place  where  other  sheep  can  have  access  to  or  be  infected  by 
them,  shall  be  liable  to  pay  all  resulting  damages,  the  statute 
cannot  be  evaded  by  confining  the  recovery  to  any  one  sheep 
which  is  first  infected,  and  from  which  the  disease  has  spread. 
It  may,  and  ordinarily  must,  be  the  case,  that  the  disease  is  first 
communicated  to  one,  or  a  very  small  number,  of  the  flock 
originally  free  from  the  disease,  and  thence  spreads  to  the  flock 
with  which  such  sheep,  which  have  taken  the  disease,  habitually 
run.  The  general  rule,  that  immediate  or  proximate  damages  are 
alone  recoverable,  is  not  applicable  to  the  extent  that  the  owner 
of  the  diseased  flock  is  only  responsible  for  the  damage  which  can 
be  shown  from  immediate  contagion  from  his  sheep.    The  object 

from  the  amount  of  the  note;  and  the  measure  of  damages  will  be  the  difference 
in  value  at  the  time  the  warranty  was  broken,  and  what  its  value  would  have 
been  had  the  warranty  been  true."     (McCkire  v.  Williams,  05  111.  390.) 

1  Jeffrey  v.  Bigelow,  13  Wend.  518.  In  this  action,  an  agent  of  defendant  sold 
to  plaintiff  a  flock  of  sheep  consisting  of  500  ewes  and  seven  bucks,  which  were 
mixed  by  iilaintiff  with  a  flock  of  548  sheep  which  he  before  o^wTied.  Shortly 
after  the  sale,  the  disease  called  the  "scab"  made  its  ai^jjearance  among  the 
sheep  bought  as  above  related,  and  spread  throughout  the  flock,  so  as  to  cause 
damage  to  the  amount  of  ^1,525. 

On  the  trial,  it  was  proved  that  "scab"  is  a  contagious  disease,  and  that  by 
putting  a  few  sheeji  diseased  with  scab  into  a  healthy  flock  the  whole  will  be- 
come affected;  that  defendant  boiight  sheeji  for  the  purpose  of  selling  them 
again;  that  of  the  lot  sold  by  defendant  to  i^laintiff,  there  Avas  a  flock  of  120 
sheep  which  defendant  had  bought  for  a  less  jirice  than  the  market  value  of 
sound  sheep,  because  of  the  lot  there  were  from  35  to  55  known  to  have  the  scab. 

No  information  of  the  fact  that  the  sheep  were  diseased  was  communicated 
by  the  vendor  to  the  piirchaser,  and  ujion  these  facts  the  Court  held  the  seller  of 
the  diseased  sheep  liable,  not  only  for  the  loss  of  those  sold  Avhich  died,  but  also 
for  the  entire  loss  in  the  whole  flock.  (Sedgwick  on  Measure  of  Damages,  Sees. 
90,01;  Bradley  v.  Eea,  14  Allen,  20;  Mullett  v.  Mason,  Law  Rep.  1  C.  P.  55i); 
Knowles  v.  Nunn,  14  L.  T.  [N.  S.]  Q.  B.  592;  Faris  v.  Lewis,  2  B.  Monroe,  375.) 


211  LAWS    RELATING   TO    SHEEP.  §  157 

of  the  statutes  is  to  afford  protection  to  flocks  of  untainted 
sheep,  by  imposing  extraordinary  care  upon  those  persons  whc 
have  sheep  which  are  affected  by  contagious  disease ;  and  such 
statutes  are  not  to  be  defeated  by  any  such  hair-splitting  re- 
finements as  would  restrict  the  amount  of  damages  to  the  injiu^y 
done  to  individuals  of  the  flock  directly  affected  by  contagion 
with  the  flock  originally  diseased. ^ 

As  to  the  amount  of  care  and  skillfulness  of  treatment  which 
the  person  whose  flock  has  been  injured  by  infection  sliould  exer- 
cise, it  Avould  appear  that,  it  being  made  to  appear  that  the  sheep, 
otherwise  free  from  disease,  have  been  rendered  ill  and  affected  by 
disease  by  infection  or  contagion,  it  does  not  lie  Avitli  him  from 
whose  flock  the  disease  has  spread  to  complain  that  he  whose 
flock  has  been  injured  did  not  employ  persons  specially  skilled  to 
treat  his  sheep,  or  to  take  extraordinary  means  to  seek  remedies 
for  them.  If  such  a  duty  devolves  on  any  one,  it  is  upon  the 
owner  of  the  sheep  from  which  the  disease  spread ;  he  having 
caused  the  injury,  is  morally  and  legally  bound  to  do  all  possible 
to  repair  it ;  the  duty  is  upon  him,  and  he  cannot  impose  it  upon 
a  person  guilty  of  no  wrong.^ 

§  157.   Duty  of  shepherd  and  agistor  of  sheep.  —  The 

care  of  sheep,  when  they  are  in  charge  of  a  servant  or  bailee, 
should  be  such  as  their  peculiar  nature  requires ;  and  negligence 
in  giving  such  care  is  a  proper  basis  for  an  action  of  damages 
on  the  part  of  the  owner,  when  he  suffers  from  the  lack  of  due 
attention  being  given  to  his  sheep. 

If  the  sheep  are  let  out  to  pasture  for  a  price,  the  bailment 
is  for  the  benefit  of  both  parties.  In  bailments  of  this  kind, 
the  bailor  yields  his  present  custody  and  care  of  the  property  to 
the  bailee  upon  a  contract  implied  by  the  law,  by  which  he  Avho 

1  Herrick  v.  Gary,  65  HI.  104;  Slount  v.  Hunter,  58  HI.  246.  "  Under  the  Act 
of  Feb.  16th,  1865,  relating  to  diseased  sheep,  it  is  clear  that  the  owner  of  sheep 
having  contagions  disease  has  no  right  to  let  them  run,  even  upon  his  own  land, 
where  they  can  communicate  disease  to  sheep  lawfully  pastured  in  an  adjoinins 
field."     (Ibid.) 

•2  "Where  a  plaintiff's  sheep  are  infected  from  the  sheep  of  defendant,  the 
former  will  not  be  held  responsible  for  more  than  ordinary  care  and  skill  in  theii 
treatment ;  but  even  if  they  could  have  been  cured  by  proper  care  and  treat- 
ment, this  -will  not  exonerate  the  defendant  from  the  liability  for  the  trouble 
and  expense  incurred  by  the  plaintiff."  (Herrick  v.  Carey,  65  111.  101-5;  JSIounl 
V.  Hunter,  58  111.  249.) 


§  158  LAWS    EELATING   TO    SHEEP.  212 

takes  the  animals  on  pasture  agrees  to  exercise  ordinary  dili- 
gence in  respect  to  the  property  bailed,  and  if  any  loss  result 
from  his  failure  so  to  do,  he  is  liable  for  such  loss.^ 

§  158.  Sheep  taken  on  shares. — Tlic  ownership  of  sheep 
'•'•  taken  on  shares  "  may  become  matter  of  controversy,  from  the 
peculiar  property  which  each  party  to  the  contract  has  in  the 
flock. 

As  a  rule,  the  increase  of  animals  belong  to  the  person  who 
owns  the  mother ;  but  this  rule  becomes  modified  by  circum- 
stances, and  such  occur  where  sheep  are  taken  to  be  pastured 
and  cared  for,  in  consideration,  on  his  part  who  takes  them,  of 
becoming  the  owner  of  a  part  of  the  increase. 

Until  the  division  of  the  young  is  made,  the  parties  are  ten- 
ants in  common  as  to  them  ;  but,  so  soon  as  to  each  is  set  apart 
his  share,  the  interest  of  the  other  ceases,  and  the  tenancy  in 
common  ends. 

But  the  change  of  ownership,  by  which  the  bailee  becomes 
part  owner  in  the  subject  of  the  bailment,  depends  greatly  upon 

1  Story  on  Bailments,  Sec.  443;  Ibid,  Sec.  429;  Jones  on  Bailments,  91,  92. 

Phelps  i\  Pari.sh,  39  Vermont,  511.  In  this  action,  the  i^laintiff  si;ed  for  a  pas- 
turage bill  of  .?41.43.  He  had  pastured  for  defendant  certain  cattle  and  sheep, 
and  the  amount  claimed  was  the  balance  of  the  money  due  therefor.  The  de- 
fendant, as  his  defense,  showed  that  plaintiff  kept  certain  bucks,  and  so  care- 
lessly guarded  them  that  they  inopjiortuncly  got  at  defendant's  ewes,  and  the 
consequence  was  that  sixty  of  the  ewes  had  lambs  in  the  latter  part  of  January, 
and  "fifty-six  of  the  lambs  died,  by  reason  of  having  so  unseasonable  a  birth." 

The  defendant,  upon  this  showing,  claimed  that  these  facts  constituted  a 
breach,  by  the  plaintiff,  of  the  contract  under  which  lie  kept  the  sheep  and  cat- 
tle, and  that  he,  the  defendant,  should  be  permitted  to  recoup  the  damages 
resulting  from  such  breach  of  the  i:)laintiff's  contract. 

The  Court  sustained  defendant  vipon  this  j)roposition,  and  said:  "  The  parties 
having  made  no  exjiress  contract  as  to  the  care  and  diligence  which  the  plaintiff 
should  exercise,  the  question  arises,  what  obligations  are  imjiosed  by  law  in 
this  sort  of  bailment  ?  It  seems  clear  that  the  general  principles  of  the  law  of 
bailment  required  the  plaintiff  to  exercise  the  care  and  diligence,  in  respect  to 
the  property,  which  men  of  common  prudence,  under  the  circumstances,  exer- 
cise about  their  own  affairs.  The  exercise  of  this  degree  of  diligence  is  not  lim- 
ited to  the  feeding  of  the  animal,  and  the  iise  of  means  to  prevent  it  from  stray- 
ing, but  the  law  requires  its  exercise  by  the  bailee  so  far  as  shall  be  necessary 
to  prevent  such  injury  to  the  property  as  would  be  likely  to  result  from  ordin- 
ary negligence." 

Upon  the  question  of  recoupment,  the  language  of  the  decision  is:  "The 
damages  result  from  the  breach  of  the  very  contract  which  the  plaintiff  seeks 
to  enforce,"  and  the  damages  resulting  from  Lis  breach  of  contract  ought  to 
affect  his  recovery  under  it. 


213  LAWS    EELATIXG    TO    SHEEP.  §  159 

the  fulfillment  of  his  part  of  the  contract.  There  is  a  sort  of 
conditional  sale,  by  which  he  acquires  no  immediate  interest, 
but  may,  at  a  future  time,  do  so  by  compliance  with  the  condi- 
tions stipulated.  These  conditions,  where  none  are  expressed 
in  the  contract,  are  implied  by  the  law  to  be  that  he  will  exer- 
cise reasonable  care — such  as  a  prudent  man  would  ordinarily 
do  in  protection  of  his  own  similar  property — and  he  should  be 
held  to  a  fair  showing  of  such  care  before  any  title  vests  in 
him.^ 

§  159.  Rights  of  o-wner  and  bailee  of  sheep  as  to  third 
parties. — For  injuries  to  sheep  let  out  on  shares,  it  would  seem 
that  either  the  owner  of  the  flock  or  he  who  has  it  on  shares 

1  Bradley  v.  Arnold,  16  Vt.  o82.  This  case  was  upon  a  written  indenture,  to 
the  effect  that  plaintiff  leased  to  one  John  Hunt  certain  lands  and  500  sheep  for 
the  term  of  sixteen  years,  on  condition  that  Hunt  delivered  to  him,  each  year, 
one  thousand  pounds  of  the  wool;  and  at  the  end  of  the  term,  this  covenant 
having  been  complied  with.  Hunt  was  to  become  the  o\vner  of  all  the  sheei)  and 
their  increase. 

The  wool  was  duly  delivered  for  live  years;  but  on  the  sixth  year,  after  the 
sheep  were  sheared,  and  the  wool  was  in  Hunt's  possession,  it  was  attached  and  , 
sold  under  process  on  a  judgment  against  Hunt. 

This  proceeding  terminated  the  relation  between  the  parties;  and,  upon  tlie 
claim  of  the  defendant  of  an  interest  in  the  flock,  consisting  of  the  original  live 
hitndred  and  their  increase,  the  Court  held  that,  "by  the  terms  of  the  lease,  the 
plaintiff  must  be  considered  the  owner  of  the  sheep  until  the  expiration  of  the 
full  term  of  the  lease,  and  the  performance  of  all  the  stipulations  contained 
in  it."  (West  v.  Bolton,  4  Vt.  558;  2  Kent,  ith  Ed.  498;  Barrett  v.  Pritchard,  2 
Pick.  512;  Dennis  v.  Belt,  30  Cal.  247;  Rourke  v.  BuUens,  8  Gray,  549.) 

Robinson  v.  Haas,  40  Cal.  474.  The  plaintiff  owned  a  large  number  of  sheep, 
and  contracted  with  one  Rood  to  keep  them  for  a  certain  length  of  time,  uj)on 
the  terms,  that,  at  the  end  of  that  time,  the  original  number  of  sheep  should  be 
made  good  to  plaintiff  out  of  the  flock,  and  the  increase,  if  any,  divided  be- 
tween plaintiff  and  said  Rood. 

Rood  took  the  sheep,  and  sold  the  flock  to  defendant,  without  informing 
plaintiff  of  his  having  done  so.  Plaintiff,  ujion  being  informed  of  what  liad 
been  done,  demanded  of  defendant  the  whole  flock ;  which  demand  was  refused 
by  defendant,  and  thereupon  iilaintiff  brought  this  action  for  the  recovery  of 
the  sheep. 

The  Court  held  that  the  delivery  of  personal  property  to  another,  by  the 
owner,  to  be  taken  care  of  and  returned  at  a  stated  time,  upon  the  terms  that 
the  latter  is  to  be  compensated  out  of  its  increase,  is  a  mere  bailment  for  the 
benefit  of  both  i^arties,  and  does  not  divest  the  title  of  the  true  owner. 

A  contract  between  A  and  B,  by  which  A  transfers  to  B  the  possession  of  a 
flock  of  sheep,  upon  the  terms  that  B  should  herd  and  take  care  of  them  for 
three  years,  at  the  end  of  which  time  he  was  to  return  to  A  the  original  number 
of  sheep  intrusted  to  him,  and  the  increase  be  equally  divided  between  them, 
does  not  form  a  j)artnership  between  A  and  B  in  the  sheep. 


§  IGO  LAWS    EELATIXG    TO    SHEEP.  214 

may  brlnjj;  an  action  against  a  stranger  :  the  bailee  has  a  special 
property  in  the  flock  during  the  continuance  of  the  contract, 
and  lie  may  protect  that  jn'ojierty  by  action  from  any  tortious 
dispossession  of  it,  or  any  injury  to  it.  But,  since  the  owner 
has  also  a  general  ])ro])crty,  he  also  may  maintain  a  like  suit 
against  the  stranger.^  But,  in  such  a  case,  a  recovery  by  either, 
it  seems,  will  bar  the  action  of  the  othcr.^ 

There  is  observable  a  distinction  in  this  respect  between  a 
letting  on  shares  and  the  case  where  the  flock  is  hired  out  for  a 
money  rental  for  a  specified  term  ;  in  the  latter  case,  the  later 
decisions  ai'c  to  the  effect  that  the  owner  cannot  maintain  an 
action  against  a  third  person  for  interference  Avith  the  flock. 

The  owner  of  animals  let  to  hire  cannot  maintain  trespass 
atrainst  a  straii";er  who  interferes  Avith  them.  To  entitle  a 
jilaintiff  to  recover  for  injury  to  personal  property,  it  must  ap- 
pear that  he  has  such  a  right  as  to  be  entitled  to  reduce  the 
goods  to  his  possession  when  he  pleases ;  and  Avhere  the  owner 
has  parted  with  his  possession  for  a  term,  during  that  term  he 
loses  control  of  it,  has  no  right  to  its  immediate  possession,  and 
therefore  cannot  maintain  trespass  for  injury  to  the  property.^ 

§  160.  Wool,  peculiar  duties  of  vendor  of. — The  sale  of 
wool,  from  the  peculiar  manner  in  which  it  is  packed,  preclud- 
ing very  thorough  examination  by  the  buyer,  has  been  a  matter 
of  judicial  application  of  the  general  rules  of  sales  of  personal 
property,  as  to  caveat  emptor,  warranty,  and  fraud.  The  real 
condition  and  character  of  the  avooI  in  the  middle  of  the  bale 

1  Croft  r.  Alison,  4  Barn.  &  Aid.  5!K);  Sudden  v.  Leavitt,  »  Jlass.  104:  Hall  v. 
Packard,  '■A  Campb.  187;  Storj' on  Bailments,  Sec.  93;  NicoUsr.  Bastard,  2  Cromp. 
JleeB.  &  Bosc.  (w9. 

-  Bae.  Abr.  Trespass,  C;  Ibid,  Trover,  C;  2  TUack.  Com.  390;  Gordon  v.  Harper, 
7  Term  P^.  9;  Pain  r.  ^yhittaker,  1  B.  &  ISIood.  99;  Story  on  Bailments,  394. 

^  Tri.scony  r.  Orr,  49  Cal.  C12.  "TIio  demurrer  to  the  complaint  was  ]iroperly 
BUKtuiued.  ^ylletller  the  action  1)(!  d(!emed  to  be  in  the  nature  of  trespass,  tro- 
ver, or  trespass  on  the  case,  the  complaint  is  defective  in  substance.  The  lease 
of  the  Hheep  coiLstituted  a  bailment  for  hire,  and  during  the  term  of  the  lease  the 
loBw-t;  waM  cDtitled  to  the  exclusive  possession.  The  alleged  trespass  was  com- 
mitted during  the  fenn  wh«'n  the  lessee  was  in  the  actual,  and  was  entitled  to 
tho  excluHive,  possession  as  against  the  phuntilT,  his  lessor.  It  is  well  settled 
tlmt  H  iKfrson  having  neither  the  jjossession  nor  the  right  to  tlie  possession  of 
rn-riMinal  chattels,  cannot  maintain  trespass  or  trover  for  injury  done  to  the 
I.n.I-Tty."  (I'utnam  c.  AViley,  8  Johns.  432;  Hoyt  v.  Gaston,  13  Ibid,  141,  5G1; 
Hunl  .•.  West,  7  Cow.  752;  Orser  v.  Storms,  9  Cow.  G87.) 


215  LAWS    RELATING   TO    SHEEP.  §  ICO 

cannot  be  ascertained  without  laying  the  sacks  open  to  the  cen- 
ters. This  Avouhl  result  in  <2;i-cat  inconvenience  to  both  parties,* 
and  would  be  almost  impossible. 

Hence,  the  person  who  packs  the  wool  is  held  to  a  strict 
accountability  in  regard  to  his  representations  Avhcn  he  speaks 
of  the  Avool,  and  his  silence  when  possessed  of  information 
which  he  ought  to  disclose.^ 

1  story's  Eq.  Jur.  Sec.  212,  citing  -with  approval  the  following  quotation  from 
Hammond's  Nisi  Prius,  238,  as  correctly  stating  the  rule  of  the  English  law  as 
to  defects  entirely  beyond  the  reach  of  the  faculties  of  inspection:  '"If  a 
vendor,  having  knowledge  of  a  defect  in  the  commodity,  which  cannot  Ije  ob- 
vious to  the  buyer,  does  not  disclose  it,  or,  if  apparent,  uses  artifice  and  con- 
ceals it,  he  has  been  guilty  of  a  fraudulent  misrepresentation."  The  perfect 
silence  may  be  the  surest  artifice.     (2  Kent's  Com.  Sec.  482.) 

Eoseman  v.  Canovan,  43  Cal.  110,  was  an  action  to  recover  damages  for  a 
fraudulent  misrepresentation  as  to  the  merchantable  quality  and  condition  of 
certain  wool  sold  by  defendants  to  plaintifEs  ;  the  vendor  was  the  shearer, 
owner,  and  packer  of  the  wool,  which  he  offered  and  sold  to  plaintiffs.  Some 
of  the  bales  the  buyers  cut  into  about  three  or  four  inches,  and  made  such  ex- 
amination as  they  could  in  that  way,  and  by  inspection  of  the  outside  of  the 
bales;  it  appeared  to  be  merchantable  wool,  dry,  and  looking  well.  There  were 
some  slight  circimistances  tending  to  show  that  the  wool  was  wet,  and  the  buy- 
ers mentioned  them  to  the  seller,  but  were  by  him  assured  that  it  was  not  wet, 
and  he  explained  away  the  circimistances  which  had  attracted  the  buyers'  atten- 
tion. 

When  the  wool  was  opened,  it  was  found  very  wet,  full  of  mud,  and  not 
merchantable,  because  of  its  being  in  that  condition ;  and  on  the  trial  it  was 
shown  that  the  sheep  had  been  sheared  in  a  wet,  muddy  corral ;  that  the  wool 
was  "  packed  wet,"  and  very  muddy  and  dirty,  "  in  a  heating  condition  " ;  that 
the  vendor  knew  these  facts,  but  the  buyers  did  not,  and  could  not  have  ascer- 
tained them  without  opening  the  bales. 

The  Court  held  that  though  the  rule  of  caveat  emptor  might  apply,  if  the  seller 
had  remained  silent,  yet,  under  the  circumstances,  and  on  account  of  tlie  active 
concealment  and  artifice  of  the  seller,  he  was  responsible  in  damages  for  a 
fraudulent  misrepresentation. 

That,  unless  there  was  warranty  or  fraud,  the  purchaser  of  chattels  cannot  be 
heard  to  complain  of  conditions  or  defects  open  to  his  observation,  or  which  he 
might  have  seen  had  he  thought  fit  to  make  an  examination  for  that  purpose. 
In  such  cases  the  maxims,  '' caveat  emptor,'-  and  "qui  vult  deccpi,  decipiatttr," 
apply;  l)ut  that  these  rules  have  no  application  to  a  case  in  which  the  vendor 
resorts  to  a  trick  or  artifice  for  the  purpose  of  diverting  the  purchaser  from  the 
line  of  inquiry  otherwise  open  to  him,  and  which,  but  for  such  diversion,  he 
might  have  followed. 


§  161  noGS.  216 


CHAPTER  XIV. 

HOGS. 

§  161.  Caveat  emptor,  in  sale  of  hogs. 

§  162.  Earnest-money  in  purchase  of  hogs. 

§  1G3.  Sale  of  swine  affected  by  contagious  disease. 

§  164.  Words  of  commendation  not  a  Avarranty. 

§  165.  Distinction  between  "hog"  and  "pork." 

§  166.  The  business  of  preparing  pork  for  market. 

§  167.  As  to  damage  by  hogs  in  trespassing. 

§  168.  Killing  hogs  found  "damage  faisant." 

§  161.  The  rule,  caveat  emptor,  in  sale  of  hogs. — The 

sale  of  hogs  is  governed  by  the  general  rules  and  the  law,  as 
already  stated,  and  enough  of  these  general  principles  may  be 
considered  to  have  been  given,  were  it  not  for  the  peculiar  char- 
acteristics of  the  animal  under  consideration,  and  the  applica- 
tion of  the  law  necessarily  to  be  considered  with  reference  to 
those  characteristics. 

Where  hogs  are  sold  without  an  express  warranty,  and  no 
fraud  is  shown,  the  purchaser  takes  the  risk  as  to  their  quality 
and  condition.  If  the  buyer  has  an  opportunity  to  examine, 
and  does  examine,  the  hogs  before  buying  them,  he  must  abide 
all  losses  which  may  result  from  their  being  diseased  at  the 
time  of  purchase,  provided  the  seller  makes  no  w^arranty,  or  is 
guilty  of  no  fraudulent  concealment  of  facts  which  render  them 
worthless.-^ 

1  Eagan  v.  Call,  34  Perm.  St.  236;  Mason  v.  Chappell,  15  Graft.  572;  Fortune 
V.  Singham,  2  Campb.  416;  Jones  v.  Bright,  5  Bing.  533;  1  Smith's  Leading  Cases, 
182. 

Frazier  v.  Harvey,  34  Conn.  471.  This  was  an  action  to  recover  the  price  paid 
for  a  lot  of  hogs.  Plaintiff  examined  them,  agreed  with  the  vendor  as  to  the 
price,  5?216,  wliich  was  their  market  vahie,  paid  it,  and  took  the  hogs  to  his 
home.  Shortly  after  the  sale,  it  became  apparent  that  the  hogs  were  affected, 
and  they  all  died  from  the  disease  within  three  or  four  weeks  from  the  time 
of  sale.  Upon  this  showing,  the  plaintiff  claimed  a  want  of  consideration,  in 
having  parted  with  liis  money  for  j^roperty  which  was  of  no  value;  but  the 
Court  did  not  regard  the  claim  as  well  founded. 


217  HOGS.  §  162 

§  162.  Earnest-money  in  purchase  of  hogs. — Contracts 
are  to  be  construed  in  view  of  surrounding  circumstances,  so 
that  substantial  effect  may  be  given  to  the  agreement  upon 
which  the  minds  of  the  parties  have  met ;  and  although  rules 
of  a  general  character  may  be  stated,  the  application  of  them 
must  depend  upon  such  contingencies  as  it  is  reasonable  to  con- 
sider that  the  parties  have  regarded  as  liable  to  occur. 

Thus,  in  the  sale  of  live  stock,  it  is  not  unusual  for  sales  to 
be  made  and  earnest-money  paid  to  secure  the  bargain ;  and 
where  such   earnest  is  manifestly  intended  to  bind -the  trade, 

The  language  of  the  decision  npon  this  point  is:  "The  rule  of  the  common 
law  is,  tliat,  where  there  is  no  express  warranty,  and  no  fraud  in  the  sale  of  per- 
sonal property,  the  purchaser  takes  the  risk  of  its  quality  and  condition.  He 
must,  therefore,  suffer  all  losses  arising  from  latent  defects  equally  unknown  to 
both  parties. 

"  This  rule,  which,  with  us,  was  definitely  settled  by  the  case  of  Dean  v.  Mason, 
4  Conn.  432,  is  too  well  understood  as  prevailing  wherever  the  Courts  profess  to 
be  governed  by  the  principles  of  the  cominon  law,  to  require  to  be  siipported  by 
the  citation  of  authorities.  But  it  is  impossible  to  give  full  effect  to  this  rule 
upon  the  idea  that  the  charge  in  this  case  was  correct.  Tliis  charge  was  as  fol- 
lows: "  If  the  defendant  did  not  warrant  the  hogs  to  be  sound,  healthy,  and  free 
from  disease,  the  plaintiff  was  not  entitled  to  recover  on  the  first  count  of  his 
declaration;  but  that  he  was  entitled  to  recover,  ujaon  the  common  counts,  the 
price  i^aid  for  the  hogs,  with  interest  from  tlie  time  he  bought  them,  if  at  the 
time  he  bought  them  they  were  so  infected  that  they  were  of  no  value  what- 
ever, and  that  the  plaintiff  received  no  value  whatever  from  his  contract,  and 
that  there  was  a  total  failure  of  consideration ;  but  that  the  failure  of  considera- 
tion was  not  total,  if  the  hides  or  carcasses  of  the  hogs  were  worth  anything  for 
any  j^ur^wse  whatever,"  "  since  it  follows,  as  a  necessary  inference  from  the  rule, 
that  the  total  worthlessness  of  the  article  sold  is  as  much  at  the  risk  of  the 
purchaser  .as  can  be  any  partial  defect  which  only  impairs,  to  some  extent,  its 
value.  In  other  words,  the  rule  itself  woiild  be  abrogated  in  all  those  cases 
where  the  defect  in  the  quality  is  sucli  as  to  render  the  article  worthless.  But 
the  plaintiff  cites,  in  sui^port  of  a  different  doctrine,  the  general  principles  to  be 
found  in  the  text-books,  that,  where  the  consideration  of  a  contract  fails,  the 
contract  may  be  avoided;  and  if  money  has  been  paid  for  a  consideration  which 
has  thus  failed,  it  may  be  recovered  back.  But  the  difficulty  in  the  plaintiff's 
case  is,  that  there  is  no  failure  of  consideration  where  tlie  purchaser  gets  pre- 
cisely what  he  agreed  to  purchase.  Where  the  purchase  is  of  chattels  having  a 
commercial  value  in  the  market,  like  live  stock,  it  cannot  be  said  of  them  that 
they  are  wholly  soimd,  while  the  quality  of  them  is  imknown,  or  a  secret  disease 
by  which  they  are  affected  is  undeveloped.  At  the  sale,  the  animals  appeared 
to  be  free  from  disease,  and  sound.  Presumptively,  the  fair  market  price  for 
such  animals  was  paid  for  them.  They  were  then  of  value  at  the  time  of  the 
pm-chase,  and,  as  the  purchaser  takes  tlie  risk  of  the  quality,  where  that  is 
equally  unknown  to  both  parties,  the  secret  defect  which  was  afterward  de- 
veloped should  have  been  giiarded  against  by  insisting  upon  a  warranty,  un- 
less the  purchaser  expected  and  intended  to  suffer  any  loss  arising  therefrom." 
(Moses  V.  Mead,  1  Denio,  378.) 


§  163  HOGS.  218 

rather  than  as  a  payment  on  account,  strictly  speaking,  a  cor- 
responding train  of  thought  may  be  fairly  presumed  to  have 
operated  on  the  minds  of  the  parties  as  inducement  to  the  con- 
tract, to  the  effect  that  if  the  buyer  fail  to  pay  the  balance  of 
the  jiurchase  price,  he  cannot  rescind  the  trade  and  have  his 
advance  returned.  Neither  is  it  just  that,  a  time  of  delivery 
being  agreed  on,  the  buyer  should  neglect  to  make  good  his 
purchase  by  paying  up  the  balance,  and  keep  the  seller  bound, 
w^hile  he  is  free  to  lose  his  forfeit,  or  make  it  good  and  keep  the 
trade  open"to  suit  his  convenience.  It  cannot  be  that  one  party 
is  bound  and  the  other  free.^ 

§  163.   Sale  of  swine  affected  by  contagious  disease. — 

Notwithstanding  the  general  rule  that  a  purchaser  should  ex- 
amine hogs  before  buying,  and  fails  to  do  so  at  his  peril,  there 
being  no  express  warranty,  yet  if  a  sale  under  a  warranty  be 
made  of  a  lot  of  hogs,  the  warranty  being  that  the  whole  drove 
sold  are  free  from  disease,  which,  from  its  infectious  character, 
is  dangerous  to  other  like  animals,  and  it  afterward  appear 
that  they  are  so  affected,  the  purchaser  may  recover  on  the 
warranty  all  his  damages  sustained  by  reason  of  the  animals 
which  he  bought  being  so  infected,  and  he  is  not  bound,  in  the 
recovery,  to  the  price  of  the  animals  purchased.^ 

1  In  McElroy  r.  Parker,  Circuit  Court  Hancock  County,  111.,  Oct.  5tli,  1874, 
plaintiff  brouglit  suit  on  verbal  contract  for  sale  of  three  hogs ;  he  paid  five 
dollars  to  defendant,  at  his  farm,  on  the  purchase,  the  balance  to  be  paid  in  the 
to^Ti,  at  certain  scales,  on  the  4th  or  5th  of  March.  Defendant  went  to  the 
scales  March  5tli,  and  remained  there  with  them  an  hour,  to  wit,  from  11  to  12 
o'clock  until  2  in  tlie  afternoon,  and  no  one  coming  to  receive  the  hogs,  he  sent 
a  message  to  plaintiff's  house,  of  l\is  readiness  to  deliver  tlie  hogs;  plaintiff  was 
not  at  home,  and  did  not  receive  the  message.  Defendant  returned  with  his 
hogs  to  his  farm;  and  on  tlie  evening  of  the  same  day,  plaintiff  followed  him  to 
the  farm  and  demanded  the  completion  of  the  trade.  Tlie  price  of  liogs  had  ad- 
vanced, and  defendant  refused  to  comply;  thereupon  plaintiff  brought  suit. 
The  Court  held  he  could  neither  enforce  tlie  completion  of  the  trade,  nor  have 
returned  his  forfeit  of  live  dollars.  Held,  defendant  fully  complied  with  the 
terms  of  the  contract  on  his  i>art,  and  for  the  breach  plaintiff  must  suffer. 

^  Bradley  v.  Real  et  al.  14  Allen,  (Mass.  1867)  20.  In  this  case,  an  action  was 
brought  to  recover  the  jirice  of  fifteen  pigs  sold  by  plaintiff  to  defendants,  by 
weight.  To  this  claim  defendant  pleaded  a  warranty  made  by  plaintiff  to  him, 
when  he  bought  the  pigs,  that  they  were  free  from  disease  and  sound ;  that 
these  representations  were  false  and  fraudulent,  and  that  plaintiff,  Avheu  he 
sold  them  to  defendants,  knew  them  to  be  affected  by  an  infectious  disease:  that 
they  were  all  infected,  and,  in  a  few  days  after  the  sale,  died  from  the  disease 
which  they  had  when  bought. 


219  HOGS.  §  164 

§  164.  Words  of  commendation  do  not  make  a  war- 
ranty. —  A  warranty  is  not  to  be  inferred  by  mere  words  of 
commendation  used  by  tlie  vendor  to  induce  the  vendee  to  make 
the  purchase ;  nor  can  a  warranty  that  the  hogs  sohl  were  fit 
for  a  specific  purpose  be  implied  from  a  knowledge  on  the  part 
of  the  seller  that  the  article  is  intended  for  such  purpose ;  ^  and, 
even  upon  an  executory  contract  for  the  sale  of  property,  if 
the  vendee  finds  the  article  received  not  of  the  kind  contracted 
for,  to  preserve  his  rights  he  must  return  it  to  the  vendor,  or 

These  facts  were  shown  on  the  trial,  but  the  jury,  under  instructions  from  the 
Court,  found  for  the  plaintiff,  and  defendants  appealed;  the  upper  Court  sus- 
tained defendants'  exceptions,  and  set  aside  the  judgment,  and,  on  the  case, 
ruled  that  "if  the  breach  of  warranty,  or  fraudulent  misrepresentations  on 
which  the  defendants  rely,  relates  to  the  existence  of  a  contagious  or  infectious 
disease  in  any  of  the  pigs  sold,  the  evidence  offered  that  other  pigs  in  the  same 
drove  had  the  disease,  and  that  the  plaintiff  knew  it,  would  be  competent ;  it 
would  obviously  be  atlmissible  to  show,  upon  the  question  of  how  much  the  pigs 
sold  were  reasonably  worth  at  the  time  of  sale,  that  they  came  from  a  drove  in 
which  they  had  been  exposed  to  the  disease,  as  this  would  affect  their  market 
value.  And  if  they  were  sold  in  one  lot,  the  value  of  the  whole  lot,  when  sold, 
would  be  tbe  subject  of  inquiry,  and  they  might  be  found  to  be  collectively  of 
no  value,  or  of  very  little  value,  from  their  liability  to  communicate  the  infec- 
tion, though  sorae  of  them  may  not  have  died  of  the  disease.  It  has  been  held, 
in  a  recent  English  case,  that,  in  an  action  for  fraudulently  misi'epresenting 
that  a  cow,  sold  to  lilaintiff,  was  free  from  infectious  disease,  if  the  plaintiff 
placed  the  cow  with  others  which  thereby  caught  the  disease  and  died,  he  can 
recover  as  damages  the  value  of  all  tlie  cows.  (MuUett  v.  Mason,  Law  Eep.  1 
C.  P.  5.59. )  The  nature  of  the  subject-matter  of  the  warranty  or  deceipt  is  such 
that  lohen  animals  are  sold  in  one  lot  together,  the  warranty  or  representation  as  to 
the  ichole  lot  heiny  single,  we  can  have  no  doubt  that  the  same  principle  should 
apply  to  the  extent  of  a  recoupment,  and  the  right  to  recouij  in  damages  should 
not  be  confined  to  the  diminished  value  of  those  which  are  proved  to  have  had 
the  disease  at  the  time  of  sale. 

"In  determiuiug  the  damages  caused  to  the  defendants  by  the  breach  of  war- 
ranty or  deceipt,  the  defendants  were  entitled  to  liave  the  jury  consider,  in  re- 
coupment of  damages,  the  whole  loss  to  them  occasioned  by  the  presence  of 
the  disease  among  the  animals  purchased,  as  well  among  those  which  took  the 
infection  after  the  sale  as  those  which  liad  it  when  the  sale  was  made." 

1  Bartlett  v.  Hoppock,  34  N.  Y.  118.  In  this  case,  the  vendor  knew  that  the 
buyer  desired  a  lot  of  hard,  corn-fed  hogs,  suitable  for  sale  iu  the  New  York 
market.  Knowing  these  facts,  the  seller,  who  had  a  lot  of  common  hogs,  which 
were  not  fit  for  that  market,  offered  them  for  sale  to  the  buyer,  a  hog-broker, 
or  ageut  to  buy  hogs  for  dealers  in  New  Y'ork.  To  induce  the  purchase,  the 
vendor  declared  that  his  animals  were  "hard,  corn-fed"  hogs,  and  they  were 
accordingly  bought  and  forwarded  to  New  York,  where  they  proved  to  be  unfit 
for  sale,  being  thin,  soft,  and  apparently  not  "corn-fed." 

The  Court  held  this  to  be  no  warranty;  that  "a  warranty  of  fitness  of  an 
article  for  a  specific  purpose  caunot  be  implied  from  a  knowledge,  on  the  part 
of  the  seller,  that  the  article  is  intended  for  such  a  purpose." 


§  165  HOGS.  220 

notify  him  of  his  objections,  and  offer  to  return  it.  The  reten- 
tion of  the  property  without  doing  this,  after  opportunity  to 
ascertain  the  defect,  is  an  admission  that  the  contract  has  been 
performed.^ 

Any  fraudulent  practice  by  the  seller,  intended  to  deceive 
the  buyer,  or  to  induce  him  to  refrain  from  due  examination  and 
inquiry,  which,  if  made,  Avould  have  shown  that  the  animals, 
would  be  unfit  for  the  use  intended,  will  amount  to  a  warranty.^ 

§   165.  The  distinction  between   "hog"  and  "pork"  is 

one  so  manifest  to  ordinary  understanding  as  apparently  to  need 
no  explanation ;  but,  in  contracts  for  sale  of  hogs  by  weight,  it 
appears  that  the  distinction  is  not  so  clear.  In  an  Indiana 
case,  a  contract  for  the  delivery  of  ''  hogs,"  to  be  paid  for  at  a 
certain  price  per  hundred  pounds  "  net,"  in  the  absence  of  any 
explanatory  evidence,  was  held  to  refer  to  dead  hogs  ready  for 
cutting  up,  and  without  blood,  hair,  or  entrails.^ 

1  Beck  V.  Sheldon,  48  N.  Y.  3fi5. 

2  2  Kent's  Com.  484.  This  distinguished  writer  says:  "The  writers  of  the 
moral  law  hold  it  to  be  the  duty  of  the  seller  to  disclose  the  defects  which 
are  within  his  knowledge.  But  the  common  law  is  not  quite  so  strict.  If  the 
defects  in  the  article  sold  be  open  equally  to  the  observation  of  both  jjarties, 
the  law  does  not  require  the  vendor  to  aid  and  assist  the  observation  of  the 
vendee.  Even  a  warranty  will  not  cover  defects  that  are  plainly  the  objects  of 
the  senses;  though  if  the  vendor  says  or  does  anything  whatever  with  an  inten- 
tion to  divert  the  observation  of  the  buyer,  even  in  relation  to  open  defects,  he 
would  be  guilty  of  an  act  of  fraud." 

3  ^Miitson  i\  Culbertson,  7  Ind.  195.  The  suit  was  on  a  contract  in  writing  to 
deliver  twenty-five  fat  hogs  at  four  dollars  net  per  hundred  pounds;  the  defend- 
ant failed  to  deliver  them,  and  plaintiff  recovered  seventy  dollars  damages,  that 
being  the  diffei'ence  between  what  he  would  have  had  to  pay  on  the  contract  for 
the  hogs  and  what  he  could  liaA^e  sold  them  for.  In  the  decision  the  Court  says: 
"The  appellant,  in  his  brief,  insists  'that  a  hog  is  a  hog,  dead  or  alive,  and  that 
it  is  hard  to  make  anything  else  out  of  a  hog  but  a  hog.'  AVe  think  the  re- 
A'crse  of  this  iiroposition  Avould  be  nearer  the  truth,  and  that  the  appellant 
would  be  compelled  to  exert  his  capacity  to  the  utmost  tension  before  he  would 
succeed  in  making  a  hog  oiTt  of  a  hog;  but  he  would  find  no  difficulty  in  con- 
verting a  hog  into  pork)  lard,  bacon,  carcass,  or  almost  anything  else  but  a  hog. 

"In  common  jiarlance,  undoubtedly,  the  term  'hog'  is  applied,  not  unfre- 
quently,  to  tlie  dead  as  Avell  as  to  the  living. 

' '  This  circumstance  tends  to  produce  some  ambiguity  in  the  contract  under  con- 
sideration. That  ambiguity  might  have  been  removed  by  the  averment,  in  the 
pleadings  or  proofs  uiion  the  trial,  of  extrinsic  facts,  whicli  would  liave  demon- 
strated the  intention  of  the  parties." 

"AVe  understand  that,  among  hog-dealers,  two  descriptions  are  recognized,  to 
wit,  gross  hogs  and  net  liogs;  that  the  gross  licg  is  the  live  hog,  and  the  net  the 


221  HOGS.  §  166 

But  sucli,  in  many,  if  not  most,  of  the  liog-raising  States, 
would  not  be  the  interpretation,  by  usage,  given  to  similar 
lansfuase  :  the  general  custom  being  to  sell  hogs  on  foot  at  the 
weight  exhibited  by  them  after  driving  to  market.  The  term 
"  net "  mio^ht  be  well  understood  to  mean  Avhat  would  be  their 
weight  at  the  moment  of  sale  as  contradistinguished  from  what 
had  been  their  AVeight  when  taken  from  the  raiser  of  the  ani- 
mal ;  the  words  "  net  weight "  being  used  to  designate  their  ex- 
act commercial  value  at  the  time  of  sale,  when  they  had  suffered 
all  the  loss  incident  to  departure  from  home,  driving,  and  being 
in  strange  quarters. 

§  166.  The  business  of  preparing  pork  for  market,  by 

killing  the  hogs,  cutting  up,  dressing,  and  packing  the  carcasses, 
has  so  far  assumed,  in  some  of  the  United  States,  the  condition  of 
a  recognized  trade,  as  to  give  rise  to  the  custom,  by  the  hog-raiser, 
of  intrusting  swine  to  the  hands  of  persons  who  make  a  business 
of  thus  fitting  the  property  for  sale  in  the  usual  course  of  trade, 
or  for  transmission  to  the  established  pork  markets. 

Those  who  assume  this  calling,  and  hold  themselves  out  to 
the  public  as  being  competent  to  do  the  work,  are  regarded  by 
the  law  as  giving  a  guaranty  to  those  who  employ  them  that 
they  possess  the  requisite  skill,  knowledge,  and  experience 
Avhich  such  a  business  requires,  and  they  are  responsible  for 
losses  which  result  from  their  lack  of  skill  or  care  in  doing  the 
work  intrusted  to  them.^ 

(lead  hog,  without  blood,  hair,  or  entrails,  and  ready  for  cutting  up.  What 
kind  was  contemplated  in  the  contract  under  consideration  ?  As  the  net  hog  was 
to  be  paid  for,  the  natural  inference,  unrebutted,  would  be  that  the  net  hog  was 
to  be  delivered." 

1  Forman  v.  Miller,  5  INIcLean,  218.  This  suit  was  on  a  contract  in  which  de- 
fendants, who  were  pork-packers,  agreed  to  cut  up  and  pack  hogs  enoiigh  to 
make  fifteen  thousand  pounds  of  "prime"  and  "mess"  pork;  the  price  for 
packing,  salt,  etc.,  was  duly  agreed  upon,  and  the  hogs  were  killed,  dressed, 
and  packed  by  defendants,  and  delivered  to  plaintiffs  under  this  contract. 
When  the  pork  arrived  at  the  place  of  sale,  four  hundred  and  seventy-three  bar- 
rels were  found  to  be  damaged,  and  unsalable  as  a  first-rate  article;  there  were 
some  circiimstances,  the  heat  of  the  weather,  and  other  ascribed  causes,  for  the 
pork  being  bad,  but  the  Court  held  the  packers  responsible  for  the  loss,  and 
said:  "  The  weather  was,  undoubtedly,  very  unfavorable  for  pork-packing  the 
season  this  pork  was  packed ;  but  the  experience  and  skill  of  the  defendants  were 
relied  upon,  and  they  should  have  acted  under  a  knowledge  of  such  responsibility 
Under  such  circumstances,  the  skill  of  the  defendants  is  specially  required. 


s 


167  noGS.  222 


§  167.  As  to  damages  by  hogs  in  trespassing  iipon 
crops,  the  common-law  rule  made  the  owner  liable.  The  owner 
could  not  permit  liis  animals  to  run  at  large,  and  trespass  upon 
the  grounds  of  other  persons  ;  and  if  he  did  so,  such  owner 
generally  was  liable,  for  the  injuries  thus  committed,  in  an  action 
of  trespass.  The  owner  of  the  crops  or  grounds  thus  trespassed 
upon  could  legally  drive  away  the  animals,  found  damage  feas- 
ant, from  his  ground,  by  such  means,  and  use  such  force,  as 
might  be  necessary  for  that  purpose  ;  but  if,  in  driving  off  the 
animals,  more  force  was  used  than  Avas  necessary  for  that  pur- 
pose, and  injury  to  the  animals  resulted  therefrom,  the  owner 
would  be  entitled  to  damages  resulting  from  the  excess  of 
force. ^ 

The  same  general  principle  applies  in  the  United  States,  but 
it  is,  as  a  rule,  much  weakened  by  the  statutes  prescribing  what 
shall  constitute  lawful  fences,  and  to  the  effect  that  only  tres- 
passes which  are  committed  on  lands  whicii  are  inclosed  by 
such  fences  shall  be  answered  for  by  the  owners  of  the  ani- 
mals.^ 

.They  should  have  declined  killing  the  hogs  if  they  did  not  believe  the  pork 
could  be  saved.  After  this  advice,  had  the  plaintiffs  directed  them  to  kill  and  pack 
the  iiork,  they  would  have  been  exonerated  from  any  liability,  had  they  piit  up 
the  pork  as  carefully  and  skillfully  as  could  be  done  by  i^ersons  acquainted 
with  the  business.  Persons  undertaking  to  pack  pork  are  bound  to  exercise  all 
the  skill  and  care  which  the  business  requires.  And  if  any  jiart  of  the  pork 
packed  j^roves  to  be  unsound,  the  jury  will  ascertain  whether  the  iinsoundness 
was  attributable  to  the  manner  in  whicli  it  was  put  up. 

"The  damages  sustained  by  the  plaintiff,  for  whom  the  work  was  done,  may 
be^ascertained  by  comparing  the  sales  of  the  unsound  article  with  the  market 
price  for  a  good  article."     (Lawrence  i\  White,  5  McLean,  108.) 

1 1  Mass.  33;  4  Met.  589;  19  Johns.  385;  3  Wend.  142;  IG  Conn.  200. 

2  Mardsee  n.  Sutton,  2  Jones'  Law  E.  (N.  C.)14().  In  this  case,  the  hogs  got 
into  defendant's  corn  in  the  night-time;  his  son  and  a  slave  boy  beat,  drove, 
and  shot  them  so  that  they  were  badly  injured;  the  o'^Tier  of  the  hogs  brought 
his  action  for  damages. 

The  Court  held  the  father  of  the  boy  and  o'uiier  of  the  slave  responsible  for 
the  damage  done  the  hogs  with  his  connivance.  The  language  of  the  decision 
is:  "If  a  father,  at  the  request  of  his  son,  agrees  that  his  slave  may  go  and  aid 
the  son  in  driving  hogs  out  of  the  son's  lield,  and  the  son,  with  the  assistance  of 
the  slave,  willfully  and  wantonly  kills  some  of  the  hogs  and  in.iures  others, 
the  father  is  not  lial)le  in  an  action  of  trespass.  But  if,  at  the  time  the  father 
agreed  that  his  slave  might  go,  he  knew,  or  had  reason  to  believe,  tliat  tlie  son 
intended  to,  or  would,  kill  the  hogs,  or  otherwise  injure  them,  tlien  the  father  is 
liable  to  the  owner  of  the  hogs  in  an  action  of  trespass  for  the  damage  done,  as 
an  aider  or  abettor,  under  the  rule,  qiiifacitper  cdium,  facit  per  se,  and  in  tres- 
pass all  are  principals." 


223  HOGS.  §  168 

In  an  action  for  trespass  by  hogs,  all  that  the  plaintiff  can  re- 
cover is  the  actual  damages  sustained  ;  he  cannot  shut  the  hogs 
up  and  recover,  in  the  same  action,  pay  for  their  keeping.  The 
measure  of  damaires  is  what  it  is  at  the  time  it  is  done ;  it  can- 
not  be  estimated  upon  the  basis  of  what  would  perhaps,  or  even 
probably,  be  the  ultimate  result  upon  the  crop  when  it  should 
become  matured ;  and  where  the  injury  is  to  a  growing  crop,  no 
regard  should  be  had  as  to  how  much  the  harvest  would  be 
affected,  except  so  far  as  anticipated  results  give  an  immediate 
value  to  the  crop.  In  assessing  damages,  the  direct  and  imme- 
diate consequences  of  the  injurious  act  are  to  be  regarded,  and 
not  remote,  speculative,  and  contingent  consequences. 

The  mode  of  ascertaining  damages,  where  the  question  is  as 
to  their  amount,  should  be  what  the  growing  crop  Avould  sell  for 
before  and  after  the  damage  done  ;  the  difference  is  the  proper 
measure  of  damage.^ 

§  168.   The  killing  of  hogs,  found  damage  feasant,  is 

not  regarded  with  favor.     Summary  modes  of  obtaining  relief 

"Woodward  v.  Piirdy,  20  Alabama,  379.  In  an  action  to  recover  damages  for 
injuries  done  to  plaintiff's  hogs,  which  had  broken  into  defendant's  inclosure,  it 
was  held  that  the  defendant  cannot  recoup  for  damages  done  to  his  crop  by  the 
hogs  when  it  appears  that  his  fence  was  not  "  a  lawful  fence,"  agreeably  to  the 
statute. 

1  Sedgwick  on  Measure  of  Damages,  marginal  page  95:  note  Ibid,  marginal 
page  56  et  seq. ;  Hays  v.  Christ,  4  Kansas,  350 :  Christ  brought  an  action  against 
Hays  for  damages  done  to  his  growing  crop  by  defendant's  hogs.  On  the  trial 
the  plaintiff  was  permitted  to  show  what  his  croj)  would  have  been  worth  in  the 
fall  of  the  year  had  not  the  hogs  injured  it:  on  appeal,  this  was  held  to  be  error. 
The  Court  says:  "The  only  just  rule  by  which  the  damages,  if  any  had  been 
done  to  the  crop,  covild  be  estimated,  was  to  confine  the  testimony  to  what  it 
was  at  the  time  the  trespass  was  committed." 

North  V.  McDonald,  47  Barb.  528.  On  the  trial,  it  appeared,  upon  plaintiff's 
showing,  that  certain  stray  hogs  liad  entered  his  wheat  field ;  that  he  had  shut 
them  x\p  in  a  pen,  where  he  had  ke^jt  them  two  or  three  weeks ;  he  sliowed  the 
damage  to  have  been  one  dollar,  and  the  cost  of  feeding  the  hogs  while  in  his 
pen  to  have  been  another  dollar;  his  suit  was  for  these  two  dollars,  a  judgment 
for  which  he  recovered  in  the  Court  of  a  justice  of  the  i^eace. 

On  appeal,  this  was  reversed  by  the  County  Court,  and  the  judgment  of  the 
County  Court  was  sustained  by  the  Supreme  Court.  The  opinion  of  the  Supreme 
Court  was  that  the  justice  erred  in  receiving  evidence  of  what  it  was  worth  to 
keep  the  hogs  after  they  had  been  taken  up.  That  was  no  legal  element  of  dam- 
ages which  the  plaintiff  had  the  right  to  recover  in  an  action  for  the  trespass. 
He  had  no  right  to  keep  the  hogs  in  his  possession  iudefinitely  and  recover  for 
their  keeping.    By  shutting  up  the  hogs  in  his  own  pen  and  keeping  them  there, 


§  168  HOGS.  224 

are  j)rescrlbed  by  the  statutes  of  the  several  States,  and  the 
commondaw  action,  where  the  statute  law  fails  to  make  ample 
provision,  is  sufficient  to  fairly  protect  the  farmer  from  the  rav- 
ages of  his  neiijhbor's  li02:s.-^ 

The  law  is  not  for  the  benefit  of  one,  but  for  all.  It  is  not 
its  23i"Ovince  to  furnish  an  arm  for  passion,  even  when  most  ex- 
cited by  circumstances  of  aggravation,  but  to  do  justice  to  all, 
and  by  its  passionless  voice  declare  the  rule  of  abstract  right, 
without  regard  to  the  personal  feelings  of  the  individual. 

From  this,  it  results  that,  where  an  act  is  committed  which  is 
characterized  by  circumstances  of  oppression  and  a  willful  dis- 
regard of  the  law,  to  the  injury  of  another,  exemplary  or  puni- 
tive damages  are  allowed.^ 

as  detailed  by  tlie  evidence,  he  became  a  trespasser  ab  initio.  It  was  his  own 
voluntary  act,  without  the  knowledge  or  consent  of  the  defendant. 

1  Morse  v.  Nixon,  (i  Jones'  Law  Eep.  (N.  C. )  293.  Where  it  was  proved  that  a 
hog  had  killed  one  chicken,  and  attempted  to  kill  another,  and,  being  found 
seventy-five  yards  from  where  the  defendant's  chickens  usually  ran,  was  de- 
stroyed by  him,  it  was  held  to  be  error  to  leave  it  to  the  jury  whether  the  liog 
was  of  a  predatory  character,  and  had  the  reputation  of  being  a  "chicken- 
eating  hog,"  and  to  instruct  them  that,  if  such  was  the  fact,  any  one  had  a  right 
to  destroy  it  as  a  public  nuisance. 

The  opinion  of  tlie  Court  is:  "  We  do  not  concur  in  tlie  opinion  of  his  Honor 
as  to  the  right  of  killing  hogs  that  are  in  the  habit  of  eating  chickens.  The  po- 
sition, that  such  a  hog  is  a  public  nuisance  and  may  be  killed  by  any  one,  is  not 
supported  on  iirinciple  or  authority,  and,  if  recognized,  would  lead  to  monstrous 
conseqiiences.  Allow  such  a  right,  and  the  jieace  of  society  cannot  be  preserved ; 
for  its  exercise  would  stir  W])  the  most  angry  passions,  and  necessarily  result  in 
personal  collisions."  It  may  be  the  killing  will  be  justified,  by  proving  that  the 
danger  was  imminent,  making  it  necessary,  then  and  there,  to  kill  tlie  hog  to 
save  the  life  of  the  chicken;  but  we  are  inclined  to  the  opinion  that,  even  under 
these  circumstances,  it  is  not  justifiable  to  kill  the  hog.  It  should  be  impounded, 
or  driven  away,  and  notice  given  to  the  owner,  so  that  he  may  put  it  up."  (Can- 
non w.  Hersey,  1  Houston  [Del.]  440.) 

"If  a  person  impounds  swine  damage  feasant,  and  kills  them  while  so  in  his 
possession,  or  injures  them,  so  that  they  afterward  die  when  set  at  large,  it  will 
be  such  a  destruction  as  will  constitute  a  conversion  in  law  of  the  property,  and 
trover  will  lie  for  it.  But  if  the  same  is  done  while  the  hogs  are  damage  feasant, 
or  running  at  large,  and  not  so  in  his  possession,  trespass,  and  not  trover,  is  the 
l^roper  remedy." 

2  Sedgwick  on  the  Measure  of  Damages,  marginal  page  38 ;  Ibid,  marginal  page 
97;  "for,  where  the  act  complained  of  is  tainted  by  fraud,  malice,  or  insult,  the 
jury,  which  has  the  power  to  punish,  has  necessarily  the  right  to  include  the 
consideration  of  the  probable  counsel  fees  in  their  estimate  of  vindictive  or 
l)unitive  damages."     (Ibid,  455  et  seq. ;  Champion  v.  Vincent,  20  Texas,  811.) 

The  law  supjioses  that  every  trespass  committed  upon  property  is  necessarily 
attended  with  some  damage,  howev<!r  inconsiderable  the  injury;  and  hence  the 
right  to  a  recovery  for  a  trespass  cannot  be  denied. 


225  HOGS.  §  1G8 

But  this  was  not  a  bare,  technical  trespass.  It  was  committed  deliberately, 
in  willful  violation  of  i>laintiff's  rights,  in  a  manner  and  under  circumstances  of 
aggi-avation,  showing  a  violent,  reckless,  and  lawless  spirit ;  and,  in  such  cases, 
the  law  allows  damages  beyond  the  strict  measure  of  compensation,  by  way  of 
punishment,  and  for  examjile's  sake. 

Where  the  defendant,  whose  fence  was  not  a  lawful  one,  shot  plaintiff's  hogs, 
there  being  a  bad  state  of  feeling  between  the  parties,  it  was  held  that  defend- 
ant was  liable  to  exemplary  damages,  and  a  verdict  which  awarded  against  him 
such  damages  was  sustained,  although  it  appeared  that  he  had  been  injured  by 
the  hogs  trespassing  upon  and  injuring  his  crop,  and  they  were  doing  so  when 
they  were  shot. 

Farm — 15. 


S  169  DOGS.  226 


CHAPTEE  XV. 

DOGS. 

§  16&.  Property  in  dogs  differs  from  that  of  other  animals. 

§  170.  The  law  will  protect  owners  of  dogs  in  their  iiroperty. 

§  171.  Police  power  to  regulate  keeping  of  dogs. 

§  172.  Sheep-killing  dogs. 

§  173.  The  law  of  a  dog-fight. 

§  174.  A  person  may  kill  a  dog  assaulting  him. 

'§  169.  Property  in  dogs  differs  from  that  iii  other  ani- 
mals.— As  to  the  ownership  of  dogs,  the  law  has  long  made  a, 
distinction  between  them  and  the  other  domestic  animals,  be- 
cause of  their  natural  tendencies  and  the  purposes  for  which 
they  are  kept.  Beasts  which  have  been  thoroughly  tamed,  and 
are  used  for  burden,  or  husbandry,  or  for  food,  such  as  horses, 
cattle,  and  sheisp,  are  as  truly  property  and  entitled  to  protec- 
tion as  any  property  can  be.  But  dogs  never,  even  in  a  state 
of  domestication,  wholly  lose  their  wild  natures  and  destructive 
instincts ;  they  are  kept  either  for  uses  which  depend  on  retain- 
ing and  calling  into  action  those  very  natures  and  instincts,  or 
else  for  the  mere  whim  or  pleasure  of  the  owner  ;  and,  there- 
fore, although  a  man  may  have  such  a  right  of  property  in  a 
dog  as  to  maintain  trespass  or  trover  for  unlawfully  taking  or 
destroying  it,  yet  he  has  generally  been  held,  in  the  phrase  of 
the  books,  "to  have  no  absolute  and  valuable  property  therein," 
which  could  be  the  subject  of  a  prosecution  for  larceny  at  com- 
mon laAv,  or  even,  according  to  some  authorities,  of  an  action  of 
detinue  or  replevin,  or  a  distress  for  rent,  or  which  would  make 
him  responsible  for  the  trespasses  of  his  dog  on  the  lands  of 
other  persons,  as  he  would  be  for  the  trespasses  of  his  cattle.^ 

1  2  Bl.  Com.  399  et  seq. ;  3  Ibid,  7  et  seq.  In  speaking  of  distress  for  rent,  the 
learned  author  says:  "As  everything  which  is  distrained  is  presumed  to  be  the 
property  of  tlie  wrong-doer,  it  will  follow  that  such  things,  wherein  no  man  can 
hare  an  absolute  and  valuable  property,  (as  dogs,  cats,  rabbits,  and  all  animals 
fcroi  ndturce)  cannot  be  distrained." 


227  DOGS.  §  170 

And  clogs  have  always  been  held,  by  the  American  Courts,  to 
be  entitled  to  less  legal  regard  and  protection  than  more  harm- 
less and  useful  domestic  animals. ^ 

§  170.  The  la-w  -will  protect  owners  of  dogs  in  their 
property. — Although  the  distinction  is  apparent  between  dogs, 
as  })roperty,  and  other  domestic  animals,  it  by  no  means  is  true 
that  ownershij3  of  dogs  is  without  legal  protection.  The  owner 
may  recover  damages  for  injury  to  them,  and  no  person  is  justi- 
fied in  treating  them  cruelly ;  the  law  will  give  redress  for  such 
misconduct  and  injury,  as  in  cases  of  injury  to  other  property. 

Thus,  in  the  matter  of  trapping  dogs,  by  taking  undue  ad- 
vantage of  their  natural  instincts,  one  cannot  shelter  himself 

Mason  v.  Keeling,  12  Modern  Reports,  336.  "If  any  beast,  in  which  I  have 
valuable  property,  do  damage  in  another's  soil,  in  treading  his  grass,  tresjiass 
■will  lie  for  it;  but  if  my  dogs  go  into  another  man's  soil,  no  action  will  lie." 

Milten  v.  Fandrye,  Pop.  161;  Read  v.  Edwards,  C.  B.  (K  S.)  245.  So,  also,  in 
the  criminal  law,  a  dog  has  generally  not  been  regarded  as  being  property  in  the 
absolute  sense  in  which  other  domesticated  animals  are  held. 

Reg  V.  Berry,  8  Cox's  Crim.  Cases,  115,  which  was  larceny  of  dogs.  The  prose- 
cutor, who  resided  at  Harblepool,  was  the  owner  of  two  dogs,  which  he  adver- 
tised for  sale.  The  prisoner  made  application  to  have  the  dogs  sent  to  him  at 
Liveriiool,  on  trial,  falsely  pretending  that  he  was  a  iierson  who  kept  a  man- 
servant. By  this  pretense  the  prosecutor  was  induced  to  send  the  dogs  to  Liv- 
erpoo,l,  and  the  jirisoner  there  obtained  possession  of  them  and  sold  them. 
The  dogs  were  pointers,  useful  for  the  iiursuit  of  game,  and  of  the  value  of  £5 
each.  The  prisoner  was  convicted,  and  sentenced  to  seven  years'  penal  servitude. 

On  behalf  of  the  prisoner,  a  question  was  reserved  for  the  consideration  of 
the  Court  of  Criminal  Appeals,  "whether  the  said  dogs  were  chattels  ?" 

The  Court  of  A^^peals  discharged  him,  holding  that  the  "  conviction  cannot  be 
sustained.  There  is  a  specific  mitigated  punishment  in  the  7  and  8  Geo.  IV,  Chap. 
29,  Sec.  31,  for  dog-stealing,  but  it  is  not  larceny  at  common  law"  ;  and  the  term 
"  Chattels,  in  the  section  relating  to  false  pretenses,  applies  only  to  s^^ch  things 
as  were  the  subject  of  larceny  at  common  law." 

"From  the  Year  Books  downward,  dogs  h-ave  always  been  held  not  to  be  the 
subject  of  larceny  at  common  law." 

American  Criminal  Law,  Wharton,  Vol.  2,  Sec.  1755.  "But  as  to  all  other 
animals  which  do  not  serve  for  food,  such  as  dogs  and  ferrets,  though  tame  and 
salable,  or  other  creatures  kept  for  whim  and  pleasure,  stealing  these  does  not 
amount  to  larceny  at  common  law.  It  is  otherwise,  however,  when  they  are 
taxed." 

Putnam  v.  Payne,  13  Johns.  312.  Per  curiam :  "  The  defendant  was  fully  justi- 
fied in  killing  the  dog,  under  common-law  principles;  the  dog  was  a  dangerous 
animal,  and  his  master  knew  it,  yet  iiermitted  him  to  rim  at  large.  Such  negli- 
gence was  wanton  and  cruel,  and  fully  justified  the  defendant  in  killing  the  dog 
as  a  nuisance.  AVe  do  not  mean  to  say  that  this  would  be  allowed  as  a  justifi- 
cation for  killing  more  useful  and  less  dangerous  animals,  as  hogs,  etc." 

1  Mitchell  V.  Williams,  27  Ind.  62;  Carter  v.  Dow,  16  Wis.  298;  Tenny  v.  Leng, 
16  Wis.  506;  Brown  v.  Carpenter,  26  Verm.  638;  Woolf  v.  Chalker,  31  Conn.  121. 


§  171  DOGS.  228 

from  the  consequences  of  an  act  of  malice  in  availing  himself  of 
the  hunger  of  a  dog  to  lead  hira  into  danger,  and  it  is  unlawful 
for  a  man  to  tempt  his  neighbors'  dogs  into  danger  by  setting 
traps  on  his  own  land,  baited  with  strong-scented  meat,  or  other 
similar  contrivances,  by  which  they  may  be  allured  to  destruction 
— and  there  appears  to  be  no  just  distinction  between  drawing  an 
animal  into  a  trap  by  his  natural  instincts,  which  he  cannot  re- 
sist, and  putting  him  there  by  manual  force.  And  a  man  must  not 
set  traps  of  a  dangerous  description  in  a  situation  to  invite  his 
neighbors'  dogs,  and,  as  it  were,  to  compel  them,  by  their  in- 
stincts, to  come  to  harm.^ 

§  171.  Police  po-wers  to  regulate  keeping  of  dogs. — 

The  power  of  regulating  by  statute  the  keeping  of  dogs,  under 
penalty  of  having  them  summarily  destroyed  in  case  of  failure 
to  comply  with  the  laws  on  the  subject  of  taxation  of  the  own- 
ers, by  special  licenses  being  required  to  be  taken  out  for  dogs 
kept,  has  been  freely  exercised  by  the  legislatures  of  most  of 
the  States ;  the  object  of  these  statutes  being  to  prevent  sud- 
den assaults  upon  persons,  worrying,  wounding,  and  killing  of 
neat  cattle,  sheep,  and  lambs,  the  distressing  evils  liable  to 
result  from  canine  madness,  and  other  injuries  likely  to  be 
occasioned  by  dogs. 

These  statutes,  Avhich  have  been  the  subject  of  much  consid- 
eration and  revision  by  the  various  legislatures,  with  a  view  of 
securing  these  objects,  and  of  affording  means  for  ascertaining 
the  owners,  and  making  them  liable  for  the  mischievous  acts  of 
their  dogs,  have  accordingly  not  only  j^rovided  that  any  person 

1  Townsend  v.  Walker,  9  East,  277.  Cited  approvingly  in  Keefe  v.  Railway 
Co.  Siipreme  Court  of  Minnesota,  January,  1875. 

In  The  People  ex  rel.  Walker  v.  Court  of  General  Sessions,  Supreme  Court  of 
New  York,  April,  1875,  which  was  a  dog  tread-mill  case,  in  which  Walker,  the 
proprietor  of  the  dog,  was  convicted,  and  fined  twenty-flve  dollars  for  cruelly 
beating  a  dog.  The  general  term  of  tlie  Supreme  Court  on  certiorari  unan- 
imously affirmed  the  decision  of  the  lower  Court.  Judge  Davis,  who  delivered 
the  opinion,  says  therein:  "On  the  merits  of  this  case,  there  appears  to  be  no 
reason  for  interfering  with  the  judgment.  Although  a  dog  is  not  a  beast  of 
burden,  yet  it  is  not  cruelty  to  train  and  subject  him  to  useful  purposes.  His 
use  on  a  treadmill,  or  inclined  plane,  or  in  any  mode  by  which  liis  strength  or 
docility  may  be  made  serviceable  to  man,  is  commendable,  and  not  criminal, 
but  his  abuse,  when  so  employed,  whenever  it  amounts  to  cruelty,  is  a  crime, 
and  punishable  precisely  vmder  the  same  circumstances  as  the  cruel  usage  of 
the  higher  animals." 


229  DOGS.  §  171 

might  kill  a  dog  assaulting  liim,^  or  attacking  sheep,  out  of  its 
owner's  inclosure,^  but  that  the  owner  should  be  responsible  in 
either  single,  double,  or  treble  damages  for  mischief  committed 
by  his  dog. 

These  statutes  have  been  administered  by  the  Courts  accord- 
ing to  a  fair  construction  of  their  terms,  and  held  to  be  reason- 
able and  constitutional  regulations  of  police.^ 

1  Brown  v.  Carpenter,  26  Yt.  638.  The  opinion,  by  Chief  Justice  Eefield,  is  to  the 
effect  that  a  ferocious  dog,  known  by  the  person  who  keeps  liim  to  be  accus- 
tomed to  bite  mankind,  is  to  be  regarded,  when  allowed  to  run  at  large,  as  a 
common  nuisance,  from  his  known  and  uniform  instincts  and  propensities,  such 
as  lions  and  bears,  and  probably  wolves  and  wild-cats,  and  domestic  ani- 
mals, from  their  ferocious  and  dangerous  habits  becoming  known  to  their  keeji- 
ers,  thus  become  nuisances  if  not  restrained.  "But  such  an  animal  is  quite  as 
obviously  within  the  general  definition  of  a  common  nuisance  as  a  wolf,  a  wild- 
cat, or  a  bear,  and,  if  allowed  to  go  at  large,  as  really  desei-ves  to  be  de- 
stroyed." 

"If  any  animal  should  be  regarded  as  the  common  terror  of  all  peaceable 
and  quiet-loving  citizens,  it  is  such  a  dog ;  and  the  owner  who  j^ersists  in  keep- 
ing such  an  animal,  without  effectiially  and  physically  restraining  him  so  that 
he  can  do  no  one  harm,  ought  not  to  complain  of  his  destruction.  He  ought  to 
be  grateful  to  escape  so ;  for  he  midoubtedly  is  liable  to,  and  justly  deserves,  ex- 
emplary iranishment  under  the  criminal  laws  of  the  State ;  and  if  one  injured, 
or  liable  to  injury,  chooses  to  right  himself  by  abating  the  nuisance  only,  he 
deserves  to  be  regarded  as  a  public  benefactor." 

Wolf  V.  Chalker,  31  Conn.  121.  "A  ferocious  dog,  accustomed  to  bite  mankind, 
is  a  common  nuisance,  and  if  found  running  at  large  may  be  destroyed  by  any 
one.  If  sued  for  the  killing  of  such  a  dog,  the  defendant  need  not  aver  or  prove 
knowledge,  on  the  part  of  him  who  harbors  the  dog,  of  his  evil  propensities  in 
this  respect." 

The  keepinr/  of  such  a  dog  is  wrongful,  and,  prima  facie,  the  owner  is  liable  to 
any  person  injured,  and  the  plaintiff  may  recover  without  proving  negligence 
in  securing  or  taking  care  of  him;  nor  is  the  negligence  of  plaintiff,  to  such  a 
suit,  a  defense. 

Such  a  dog  is  a  dangerous  instrument  for  protection,  and  placing  him  for  that 
purpose  can  only  be  justified  in  cases  where  the  placing  of  concealed  instru- 
ments may  be  justified  to  prevent  a  felony.  Korean  such  use  of  him  by  the 
owner,  under  his  personal  direction,  be  justified,  wliere  a  like  degree  of  injury 
may  not  be  lawfully  inflicted  by  a  different  instrument. 

A  ferocious  dog,  addicted  to  biting  mankind,  and  suffered  to  run  at  large, 
(unmuzzled)  is  a  common  nuisance;  any  person  may  kill  it,  independent  of  any 
statute  authority,  and  independent  of  the  question  whether  it  was  doing  or 
threatening  injury  at  the  time  of  the  killing,  or  whether  the  owner  had  notice 
of  its  disi:)osition. 

Maxwell  v.  Palmerton,  24  Wend.  407;  Dunlop  v.  Snyder,  17  Barb.  561;  Peo- 
ple i'.  Board  of  Police,  15  Abbot's  Pr.  Hep.  167;  Leonard  v.  Wilkins,  9  Johns. 
233;  Hinckley  v.  Emerson,  4  Cow.  351;  King  v.  Kline,  6  Penn.  St.  318. 

2  Killing  a  dog  while  in  the  act  of  chasing  and  worrying  sheep  is  a  justifiable 
act,  and  the  owner  of  the  dog  cannot  recover  his  value.  (Brown  v.  Hoburger, 
52  Barb.  15. ) 

3  Morey  v.  Brown,  42  N.  H.  373.     "The  provisions  of  N.  H.  Eev.  Stats.  Chap. 


§  172  DOGS.  •      230 

§  172,  Sheep-killing  dogs. — The  responsibility  of  the  owner 
or  harborer  of  a  dog,  for  his  acts,  is  peculiar,  and  characterized 
by  the  e\al  propensities  natural  to  the  species. 

If  domestic  animals,  such  as  oxen  and  horses,  injure  any  one, 
in  person  or  property,  so  long  as  they  are  rightfully  in  the  place 
where  they  do  the  mischief,  the  owner  of  such  animals  is  not 
liable  unless  he  knew  that  they  were  accustomed  to  do  mischief, 
and  kept  them  so  negligently  and  carelessly  that  injury  resulted 
therefrom.^ 

But  in  case  of  damage,  done  by  dogs,  no  scienter  need  be  al- 
leged or  shown ;  and  the  owner  of  a  dog  cannot  allow  him  to 
run  at  large,  even  on  his  ovn\  premises,  without  some  risk  to 
himself  in  becoming  liable  in  damages  for  his  assaults  on  man 
or  beast.^ 

It  is  true  that  the  authorities  are  not  uniformly  to  this  effect, 

127,  authorizing  the  killing  of  any  clog  found  withoat  a  collar,  is  not  in  conflict 
with  the  constitution  of  the  State;  and  where  a  statute  provides  that  no 
person  shall  be  liable  for  killing  any  dog  which  shall  be  found  not  having  a 
collar  of  brass,  tin,  or  leather,  with  the  name  of  the  owner  or  owners  carved  or 
engraved  thereon,  actual  notice  of  the  ownership  of  the  dog  found  without 
such  a  collar  will  not  make  a  person  liable  for  killing  it." 

Carters.  Dow  et  al.  16  Wis.  298.  "Tlie  act  to  regiilate  and  license  the  keep- 
ing of  dogs  is  an  exercise  of  the  police,  and  not  of  the  taxing,  iiower  of  the 
State,  and  is  constitutional." 

1  Decker  v.  Gammon,  44  Maine,  322.  "If  damage  be  done  by  any  domestic 
animal  kept  for  use  or  convenience,  the  ov^nier  is  not  liable  to  an  action  on  the 
ground  of  negligence,  without  proof  that  he  knew  that  the  animal  was  accus- 
tomed to  do  mischief  before,  if  such  animal  is  rightfully  in  the  place  where  it 
does  the  mischief.  (Vrooman  v.  Sawyer,  13  Johns.  E.  339;  Buxendia  v.  Sharp,  2 
Salk.  R.  GG2 ;  Eex  w.  Huggins,  2  Ld.  Raym.  1853. )  ' '  There  is  a  difference  between 
beasts  that  are  ferod  natura,  as  lions  and  tigers,  which  a  man  must  always  keep 
at  his  peril,  and  beasts  that  are  mansucUe  natura,  and  break  through  the  tame- 
ness  of  their  nature,  such  as  oxen  and  horses.  lu  the  latter  case,  an  action  lies, 
if  the  o^^^ler  has  had  notice  of  the  quality  of  his  beast;  in  the  former  case,  an 
action  lies  without  such  notice."  ( Jenkins  v.  Turner,  1  Ld  Eaym.  109;  May  v. 
Burditt,  58  Eng.  Com.  Law,  94;  Mason?;.  Keeling,  12  Modern  Eep.  333;  Lyke  f. 
Van  Lewis,  1  N.  Y.  515.  ) 

2  Wolf  V.  Chalker,  31  Conn.  121;  McCaskill  v.  Elliott,  5  Strobh.  (S.  C.)  liW. 
"The  owner  of  a  dog  keeps  it  at  his  own  risk,  being,  without  regard  to  care  or 
negligence,  an  insurer  against  all  the  harm  wliich  he  might  reasonably  have  ex- 
pected to  ensue."  (  Pickering  v.  Orange,  2  111.  492 ;  Loomis  ?;.  Terry,  17  Wend.  49G. 
"  A  man  may  keep  a  dog  for  the  necessary  defense  of  his  house,  his  garden,  or  his 
fields,  and  may  cauiwushj  use  him  for  that  purpose,  in  the  night-time ;  but  if  he 
permit  a  mischievous  dog  to  be  at  large  on  his  premises,  and  a  person  is  bitten 
by  him  in  the  day-time,  the  owner  is  liable  in  damages,  although  the  person  in- 
injured  be,  at  the  time,  trespassinr/  on  the  grounds  of  the  owner  by  hunting  iu 
his  woods  without  license.  A  person  is  not  permitted,  for  the  protection,  in 
his  absence,  of  property  against  a  mere  trespasser,  to  use  means  endangering  the 


231  DOGS.  §  173 

and  that  it  has  been  held  that  the  owner  of  a  dog  was  not  liable 
for  his  acts  of  ferocity  unless  knowledge  of  his  evil  disposition 
was  brought  home  to  the  owner.^ 

But  the  general  tenor  of  the  rulings  of  the  Courts  has  been 
such  as  to  establish  the  proposition  that  he  who  keeps  a  dog 
does  so  at  his  peril  of  the  natural  propensity  of  the  species  to 
rapacity  and  ferocity.^ 

§  173.  The  law  of  a  dog-fight  cannot  be  regarded  as  set- 
tled, because,  although  cases  have  occurred  wherein  the  legal 
principles  affecting  such  controversies  have  been  considered,  the 
real  parties  in  interest,  the  true  belligerents,  could  not  Avell  be 
heard  by  the  Courts  in  their  own  behalf.^ 

life  or  safety  of  a  Iniman  being,  whatever  he  may  do  where  the  entry  upon  his 
premises  is  to  commit  a,  felony,  or  breach  of  the  peace ;  and  where  such  means  are 
used,  the  natiu-e  and  value  of  the  property  sought  to  be  protected  must  be  such 
as  to  justify  the  proceeding;  full  notice  of  the  mischief  to  be  encountered  must 
be  given,  and  the  principles  of  humanity  must  not  be  violated,  or  the  owner  will 
be  subjected  to  damages  for  any  injury  which  ensues."  (Sherfey  v.  Bartlett,  4 
Sneed,  (Tenn.)  58;  McCarthy  v.  Guild,  12  Met.  291;  Smith  v.  Montgomery,  52  Me. 
178 ;  Wirth  v.  Allen,  3  Allen,  191. )  "  In  an  action  to  recover  double  the  amount  of 
damages  siastained  from  the  bite  of  a  dog,  (Rev.  Stats.  Mass.  Chap.  58,  Sec.  13) 
it  is  not  necessary  to  prove  that  the  owner  knew  of  the  vicious  character  of  his 
dog,  or  that  the  dog  was  accustomed  to  bite." 

1  Faircheld  v.  Bentley,  30  Barb.  147.  The  defendant's  dog  was  under  his  wagon 
in  the  shed  of  an  inn  where  the  defendant  was  a  guest;  the  dog  bit  iilaintiff,  the 
inn-keeper,  while  he  was  unhitching  the  horses  to  move  them.  Held,  that  whether 
the  dog  was  or  was  not  quoad,  the  master,  who  had  tried  to  send  him  home,  an 
Involuntary  trespasser,  the  defendant  was  not  liable,  unless  he  knew  that  the 
dog  was  of  a  vicious  character;  and  that  such  knowledge  could  not  be  inferred 
from  the  subsequent  conduct  of  the  dog. 

2  Kertschake  v.  Ludwig,  28  "Wis.  430 ;  Lavarone  v.  Mongiatti,  41  Cal.  138,  in 
which  it  was  said:  "The  o^\Tier  of  a  ferocious  dog,  knowing  the  vicious  jiro- 
pensities  of  the  animal,  keeps  it  at  his  oaati  risk,  and  is  responsible  for  any  in- 
jury inflicted  by  it  upon  a  jierson  who  is  free  from  fault.  A  person  may  keep  a 
ferocious  dog,  and  he  has,  lawfully,  the  same  right  to  keep  a  tiger.  The  danger 
to  mankind,  and  tlie  injury,  if  any  is  suffered,  comes  from  the  same  soiirce,  the 
ferocity  of  the  animal.  In  detei-mining  the  responsibility  of  the  keeper  for  an 
injury  inflicted  by  either  animal,  the  only  difference  betAveen  the  two  cases  is, 
that  in  the  case  of  an  injury  caused  by  a  dog,  the  knowledge  of  the  keeper  that 
the  dog  was  ferocious  must  be  alleged  and  proven,  for  all  dogs  are  not  ferocious ; 
while  in  the  case  of  a  tiger,  such  knowledge  will  be  presumed  from  the  nature 
of  the  animal.  This  knowledge,  however  established,  whether  by  evidence  or 
by  presumption,  is  the  same  in  substance  and  works  the  same  results."  (Part- 
low  V.  Haggirty,  35  Ind.  178;  Kelly  v  Tilton,  2  Abb.  [K  Y.]  495.) 

Scienter. — The  liability,  under  N.  H.  Gen.  Stat.  Chap.  105,  Sec.  8,  of  theo\vneror 
keeper  of  a  dog,  in  double  damages,  to  one  bitten  thereby,  is  not  affected  by  his 
ignorance  of  the  dog's  vicious  habit.     (Orne  v.  Roberts,  51  N.  H.  110.) 

1  Wiley  V.  Slater,  22  Barb.  50G.    The  distinguished  jurist,  W.  F.  Allen,  J.,  who 


§  1T3  DOGS.  232 

The  rules  established  by  cases  in  which  dogs  have  attacked 
human  beings,  and  their  owners  have  been  held  liable,  do  not 
always  appear  to  be  applicable  to  those  wherein  the  attack  is  by 

delivered  the  oiwnion  in  this  cause  in  the  Supreme  Court,  says :  "  This  is  the  first 
time  I  have  been  called  upon  to  administer  the  law  in  the  case  of  a  j)ure  dog- 
fight. I  have  had  occasion  to  preside  upon  the  trial  of  actions  for  assaults  and 
batteries,  in  which  the  masters  of  dogs  have  acquitted  themselves  in  a  manner 
which  might  well  have  aroused  the  envy  of  their  canine  dependents.  I  am  con- 
strained to  admit  total  ignorance  of  the  code  duello  among  dogs,  or  what  con- 
stitutes a  just  cause  of  offense,  and  justifies  a  resort  to  the  vltima  ratio  regem,  a 
resort  to  arms,  or  rather  to  teeth,  for  redress;  whether  jealousy  is  a  just  cause  of 
war,  or  what  different  degi-ees  and  kinds  of  insult  or  slight  entitle  the  injured 
or  offended  beast  to  insist  upon  satisfaction.  I  know,  and  am  glad  to  know, 
that  no  nice  question  upon  the  conduct  of  the  conflict  on  the  part  of  the  princi- 
pal actors  arises  in  this  case.  It  is  not  claimed,  upon  either  side,  that  the  strug- 
gle was  not  fair  and  dog-like  in  all  respects.  Indeed,  I  was  not  before  aware 
that  it  was  claimed  that  any  law,  human  or  divine,  moral  or  ceremonial,  com- 
mon or  statute,  undertook  to  regulate  and  control  these  matters,  but  siipposed 
that  this  was  one  of  the  few  privileges  which  this  class  of  animals  still  retained 
in  the  domesticated  state ;  that  it  was  one  of  their  reserved  rights,  not  surren- 
dered when  they  entered  into  and  became  a  part  of  the  domestic  institution,  to 
settle  and  avenge,  in  their  own  way,  all  individual  wrongs  and  insults,  without 
regard  to  what  Blackstone,  or  any  other  jurist,  might  write,  speak,  or  think  of 
the  'rights  of  persons,  or  rights  of  things.' 

"  I  have  been  a  firm  believer,  with  the  poet,  in  the  instructive,  if  not  semi- 
divine  right  of  dogs  to  fight ;  and  with  him  would  say : 

'  Let  dogs  delight  to  bark  and  bite, 

For  God  hath  made  them  so ; 
Let  bears  and  lions  growl  and  fight, 
For  'tis  their  nature  to.' 

"  It  is  i)ossible,  had  the  owners  of  both  dogs  been  present,  that  the  belligerents 
would  have  been  changed,  and  the  familiar  questions  growing  out  of  son  assault 
demesne  and  mollitw  manus  imposuit  would  have  been  presented,  but  no  such 
questions  are  here  made. 

"  The  defense  is  not  rested  upon  the  principle  of  self-defense,  or  defense  of 
the  possession  of  the  master  of  the  victorious  dog.  Had  this  defense  been  in- 
terposed, a  serious  and  novel  question  would  have  arisen  as  to  the  liability  of 
the  offending  dog  for  excess  of  force,  and  whether  he  would  be  held  to  the  same 
rules  which  are  applicable  to  human  beings  in  like  cases  of  offending,  whether 
he  would  be  held  strictly  to  the  proof  of  the  necessity  and  reasonableness  of  all 
the  force  exerted,  under  the  plea  that,  in  defense  of  his  carcass  or  the  j)remises 
committed  to  his  watch  and  care,  '  he  did  necessarily  a  little  bite,  scratch, 
wound,  tear,  devour,  and  kill  the  jilaintiff's  dog,  doing  no  unnecessary  damage 
to  the  hide  or  body  of  said  dog.' 

"  Addressing  myself  to  the  question  really  made  in  the  case,"  the  learned 
judge  continues,  "  it  is  one  thing  for  a  dog  to  be  dangerous,  and  quite  another 
to  be  unwilling  to  have  strange  dogs  upon  his  master's  premises.  To  attack 
and  drive  off  dogs  thus  siiffered  to  go  at  large  would  be  a  virtue.  Owners  of 
valuable  dogs  should  take  care  of  them,  proportioned  to  their  value,  and  keep 
them  within  their  own  precincts,  or  under  their  own  eye.  It  is  very  proper  to 
invest  dogs  with  some  discretion,  while  uiion  their  master's  premises,  in  regard 
to  other  dogs,  while  it  is  palpably  wrong  to  allow  a  man  to  keep  a  dog  who 


233  DOGS.  §  174 

one  clog  upon  another.  OAvners  of  dogs  are  bound  to  take  a 
care  of  them  proportioned  to  their  value,  but  that  does  not  in 
all  cases  relieve  the  person  who  keeps  a  "  fighting  dog  "  from 
liability  for  damages  done  by  his  animal  to  another  dog ;  and 
the  rule  is  applicable  that  vicious  dogs  are  a  nuisance,  and  their 
owners  must  either  kill  or  keep  them  in  confinement,  as  soon  as 
they  have  notice  of  their  dangerous  habits,  or,  failing  thus  to 
guard  against  their  doing  damage,  be  held  to  answer  therefor.^ 

§  174.  A  person  assaulted  by  a  dog  may  kill  it,  when. 

— If  a  dog  assault  a  person  as  he  is  passing,  or  cause  him  dan- 
ger by  frightening  his  horse  on  the  road,  it  seems  that  the 
person  so  assaulted  or  endangered  may  protect  himself  from 
injury,  ov  his  horse  from  being  bitten,  by  killing  the   dog ;  for, 

may  or  will,  under  any  circumstances,  of  liis  own  volition,  attack  a  Luman 
being." 

1  Wheeler  v.  Brant,  23  Barb.  324.  This  case  does  not  fully  sustain  the  preced- 
ing one,  and  may  be  considered,  to  a  certain  extent,  as  an  adverse  decision. 
Plaintiff  had  a  small  dog,  a  pet,  or  sporting  animal,  which  followed  him  one 
evening  to  defendant's  house,  where  plaintiff  went  to  see  defendant  on  business. 
The  defendant  had  a  large  "fighting  dog,"  and  its  owner  was  aware  of  his 
being  quarrelsome;  the  big  dog  attacked  the  little  one  and  killed  him;  plaintiff 
sued  the  owner  of  the  victorious  animal  for  the  value  of  his  pet,  and  recovered. 
The  ruling  of  the  Sui^reme  Court  was  that  "where  a  dog,  which  has  the  vicious 
habit  of  attacking  other  dogs  without  being  incited  to  do  so,  is  suffered  to  go  at 
large,  and  he  attacks  and  kills  the  dog  of  a  person  lawfully  coming  upon  the 
premises  where  he  is,  his  owner  is  liable  in  danaages  for  the  value  of  the  dog  so 
killed,  where  it  is  shown  that  such  owner  had  knowledge  of  the  viciousness  of 
his  dog." 

Heisrodt  v.  Hackett,  Supreme  Court  of  Michigan.  Plaintiff  was  the  owner  of 
a  small  but  intelligent  and  well-trained  dog,  which  had  such  gifts,  natiu-al  and 
acquired,  as  rendered  him  of  especial  value  to  i^laintiff  in  the  conduct  of  his 
business.  There  was  a  large,  savage,  and  dangerous  dog  living  near  plaintiff's 
residence.  This  dog  was  without  an  owner.  He  was  permitted  to  live,  and  was 
taken  care  of,  on  defendant's  premises.  The  big  dog  killed  the  little  one,  and 
plaintiff  sued  defendant  for  damages.  Defendant  justified  the  conduct  of  the 
brute,  with  dogged  persistence  following  the  case  into  the  highest  Court,  on  the 
ground  that  the  little  one  had  no  collar,  nor  his  owner  a  license  for  keeping  him, 
as,  under  a  statute,  they  resiiectively  should  have  had,  or,  failing  in  so  doing, 
incurred  danger  of  the  dog's  being  killed  by  any  constable  or  police  officer. 

The  defense  was  not  deemed  good,  and  the  Court  held  that  there  being  no 
showing  that  the  big  dog  had  all  of  the  official  characteristics  of  constable  or 
police  officer;  that  in  the  killing  he  was  in  the  discharge  of  his  duty  as  a  public 
functionary,  or  that,  if  he  was,  he  duly  ascertained  the  absence  of  the  collar  or 
the  lack  of  a  license  before  proceeding  to  act  in  a  summary  manner,  and  that 
therefore  the  defense  could  not  be  entertained;  that  where  a  statute  authorizes 
a  particular  officer  to  perform  an  act,  another  cannot  justify  under  the  authority 
given.    (4  Bl.  Com.  178;  INIichigan  Lawyer,  14  Alb.  L.  J.  122.) 


§  1G8  HOGS.  224 

are  prescrilioJ  by  the  statutes  of  the  several  States,  and  the 
cumiaon-law  action,  wliere  the  statute  hiw  fails  to  make  ample 
provision,  is  sufficient  to  fairly  protect  the  farmer  from  the  rav- 
ages of  his  neighbor's  hogs.^ 

The  laM'  is  not  for  the  benefit  of  one,  but  for  all.  It  is  not 
its  2)ro^■ince  to  furnish  an  arm  for  passion,  even  when  most  ex- 
cited by  circumstances  of  aggravation,  but  to  do  justice  to  all, 
and  by  its  passionless  voice  declare  the  rule  of  abstract  right, 
•without  regard  to  the  personal  feelings  of  the  individual. 

From  this,  it  results  that,  where  an  act  is  committed  which  is 
characterized  by  circumstances  of  oppression  and  a  willful  dis- 
regard of  the  law,  to  the  injury  of  another,  exemplary  or  puni- 
tive damages  are  allowed.^ 

as  detailed  by  the  evidence,  he  became  a  trespasser  ab  initio.  It  was  his  own 
voluntary  act,  without  the  knowledge  or  consent  of  the  defendant. 

1  ^lorse  V.  Nixon,  0  Jones'  Law  Eep.  (N.  C.)  293.  Where  it  was  proved  that  a 
hog  had  killed  one  chicken,  and  attemjited  to  kill  another,  and,  being  found 
Beventy-five  yards  from  Avhere  the  defendant's  chickens  usually  ran,  was  de- 
stroyed by  him,  it  was  held  to  be  error  to  leave  it  to  the  jury  whether  the  hog 
was  of  a  predatory  character,  and  had  the  reputation  of  being  a  "cliickcn- 
eating  hog,"  and  to  instruct  them  that,  if  such  was  the  fact,  any  one  had  a  right 
to  destroy  it  as  a  public  nuisance. 

The  opinion  of  the  Court  is:  "We  do  not  concur  in  the  opinion  of  his  Honor 
as  to  the  right  of  killing  hogs  that  are  in  the  habit  of  eating  chickens.  The  po- 
sition, that  such  a  hog  is  a  public  nuisance  and  may  be  killed  6?/  any  one,  is  not 
supported  on  principle  or  authority,  and,  if  recognized,  would  lead  to  monstrous 
consequences.  Allow  such  a  right,  and  the  jieace  of  society  cannot  be  preserved; 
for  its  exercise  would  stir  up  the  most  angry  passions,  and  necessarily  result  in 
personal  collisions."  It  may  be  the  killing  will  be  justified,  by  proving  that  the 
danger  was  imminent,  making  it  necessary,  then  and  there,  to  kill  the  hog  to 
save  the  life  of  the  chicken ;  but  we  are  inclined  to  the  opinion  that,  even  under 
these  circumstances,  it  is  not  justifiable  to  kill  the  hog.  It  should  be  impounded, 
or  driven  away,  and  notice  given  to  the  owner,  so  that  he  may  put  it  up."  (Can- 
non v.  Ilersey,  1  Houston  [Del.]  440.) 

"If  a  person  impounds  awino  damafje  feasant,  and  kills  them  while  so  in  his 
possession,  or  injures  them,  so  that  they  afterward  die  when  set  at  large,  it  M'ill 
be  sucli  a  destruction  as  will  constitute  a  conversion  in  law  of  the  property,  and 
trover  will  lie  for  it.  But  if  the  same  is  done  while  the  hogs  are  dama;je  feasant, 
or  running  at  large,  and  not  so  in  his  possession,  trespass,  and  not  trover,  is  the 
prop<r  remedy." 

2  Sedgwick  on  the  Measure  of  Damages,  marginal  page  38;  Ibid,  marginal  page 
W;  "for,  wliere  the  act  comidained  of  is  tainted  Ity  fraud,  malice,  or  insult,  the 
jur>',  whicli  lias  the  power  to  punish,  has  necessarily  the  right  to  includf!  the 
cdUKideration  of  the  probable  counsel  fees  in  their  estimate  of  vindictive  or 
punitive  damages."    (Ibid,  455  et  seq. ;  Champion  i\  Vincent,  20  Texas,  811.) 

Tin-  law  KUp[>oHe8  tiiat  every  trespass  committed  upon  property  is  necessarily 
utt4:nded  with  some  damage,  however  incf)nsi(lerable  the  injury;  and  hence  the 
rlghl  to  u  recovery  for  a  trespass  cannot  be  denied. 


225  HOGS.  §  108 

But  tlais  was  not  a  bare,  technical  trespass.  It  was  committed  deliberately, 
in  -willful  violation  of  plaintiff's  rights,  in  a  manner  and  under  circumstances  of 
aggravation,  shoM'ing  a  violent,  reckless,  and  lawless  spirit ;  and,  in  such  cases, 
the  law  allows  damages  beyond  the  strict  measure  of  compensation,  by  way  of 
punishment,  and  for  example's  sake. 

"WHiere  the  defendant,  whose  fence  was  not  a  lawful  one,  shot  plaintiff's  hogs, 
there  being  a  bad  state  of  feeling  between  the  parties,  it  was  held  that  defend- 
ant was  liable  to  exemjilary  damages,  and  a  verdict  wliich  awarded  against  him 
such  damages  was  sustained,  although  it  appeared  that  he  had  been  injured  by 
the  hogs  trespassing  upon  and  injuring  his  crop,  and  they  were  doing  so  when 
they  were  shot. 

Farm — 15. 


§  176  DANGEROUS    ANIMALS.  236 

§  176.  Ow^ner  liable  for  damage  by  vicious  animal, 
when. — In  the  United  States,  the  owner  of  a  beast  known  to 
be  dangerous  is  liable  to  damage  done  by  it,  where  such  damage 

dog's  toes;  for  it  was  owing  to  his  not  hanging  the  dog  on  the  first  notice;  and 
the  safety  of  the  king's  subjects  ought  not  afterward  to  be  endangered.  The 
scienter  is  the  gist  of  the  action." 

A  case  is  cited  in  an  American  report  to  the  same  point  (see  Smith  v.  Causey, 
22  Ala.  571 ;  Beck  and  Wife  v.  Dyson,  4  Campb.  198) ;  but  it  does  not  seem  to  be 
wholly  consistent  therewith. 

"  It  was  a  case  for  keeping  a  dog  which  bit  the  plaintiff,  Mrs.  Beck.  She  had 
been  dreadfully  bitten  and  lacerated  by  this  dog,  and  the  question  was  whether 
there  was  suificient  evidence  of  his  being  accustomed  to  bite,  and  of  its  being 
known  to  the  defendant. 

"It  was  proved  that  the  dog  was  of  a  fierce  and  savage  disposition,  that  the 
defendant  generally  kept  him  tied  up,  and  that  Mrs.  Beck,  having  been  bitten 
by  him,  the  defendant  promised  to  make  her  a  pecvmiary  recompense ;  but  there 
was  no  proof  of  his  having  before  bitten  any  other  i">erson. 

"It  was  submitted,  that,  from  these  circumstances,  the  jury  woidd  be  war- 
ranted in  inferring  that  the  dog  was  accustomed  to  bite  within  the  knowledge 
of  the  defendant ;  but  Lord  EUenborough  held  the  evidence  insuificient,  and  di- 
rected a  nonsiiit." 

In  Biisendin  v.  Sharp,  2  Salk.  661,  "the  plaintiff  declared  that  the  defendant 
kept  a  bull  that  used  to  run  at  men,  but  did  not  say  scie'ns  or  scienter,  etc.  This 
rule  was  held  naught  after  verdict,  for  the  action  lies  not,  unless  the  master 
knows  of  this  quality;  and  we  cannot  intend  it  was  proved  at  the  trial,  for  the 
plaintiff  need  not  prove  more  than  is  in  his  declaration." 

In  Jenkins  v.  Turner,  1  Ld.  Eaym.  109,  a  boar  had  set  upon,  bitten,  and  injured 
a  mare.  It  was  charged  that  the  owner  knew  of  its  being  an  animal  of  vicious 
disposition,  and  dangerous.  On  the  trial,  it  was  showni  that  the  boar  had  bitten 
a  child;  that  the  owner  knew  that  fact,  and  still  allowed  the  boar  to  run  at 
large.  Although  it  was  argued  that  the  knowledge  that  the  hog  would  bite  chil- 
dren did  not  constitute  information  that  it  would  injure  mares,  the  Court  held 
that  the  scienter  was  sufficiently  shown,  and  the  owner  of  the  offending  animal 
liable. 

In  Eex  V.  Huggins,  2  Ld.  Raym.  1583,  it  was  said  by  the  Court:  "  There  are,  in- 
deed, cases  of  murder,  whei-e  no  act  was  done  by  the  persons  guilty;  as  the  let- 
ting loose  of  a  wild  beast  which  the  party  knows  to  be  mischievous,  and  he  kills 
a  man,  the  owner  of  the  beast  is  guilty  of  murder.  There  is  a  difference  be- 
tween beasts  which  are  ferce  natura,  as  lions  and  tigers,  which  a  man  must  al- 
ways keep  at  his  peril,  and  beasts  that  are  nimisuetcB  natura,  and  break  tlurough 
the  tameness  of  their  nature,  such  as  oxen  and  horses.  In  the  latter  case,  an 
action  lies,  if  the  owner  has  had  notice  of  the  quality  of  the  beast ;  in  the  former 
case,  an  action  lies  without  such  notice. 

As  to  the  point  of  felony,  if  the  owner  has  notice  of  the  mischievous  quality 
of  the  ox,  and  he  uses  all  proper  diligence  to  keep  him  up,  and  he  happens  to 
break  loose,  and  kills  a  man,  it  would  be  very  hard  to  make  a  man  guilty  of 
felony. 

But  if,  through  negligence,  the  beast  goes  abroad,  after  warning  or  notice  of 
his  condition,  it  is  the  opinion  of  Hale  that  it  is  manslaughter  in  the  owner. 

"  And  if  he  did  purposely  let  him  loose,  and  wander  abroad,  with  a  design  to 
do  mischief ;  nay,  thougli  it  were  but  with  a  design  to  frighten  jieople,  and  make 
sport,  and  he  kills  a  man,  it  is  murder  in  the  owner." 


287  DANGEROUS   ANIMALS.     ,  §  176 

is  the  result  of  want  of  due  care  on  the  part  of  the  owner  prop- 
erly to  guard  his  animal  from  doing  injury  ;  and  the  measure  of 
care  imposed  is  commensurate  to  the  risk  of  danger  to  the  pub- 
lic from  the  vicious  propensity  of  the  beast. 

In  America,  the  common-law  rulings  have  been  generaly  fol- 
lowed, and  the  decisions  of  the  American  Courts  have  been  in 
accordance  therewith.  The  application  of  the  principle  in- 
volved has  been  the  principal  matter  considered  in  this  connec- 
tion, and  incidentally  thereto  the  question  has  arisen  as  to  which 
is  responsible  for  damage  done  by  a  vicious  beast,  the  owner, 
or  he  who  has  the  custody  of  it. 

The  owner  of  a  vicious  animal  is  an  insurer  against  all  harm 
which  might  reasonably  be  expected  to  result  from  the  propens- 
ity of  his  animal  to  do  damage ;  ^  but  this  insurance  cannot  be 

iMcCaskill  v.  Elliott,  5  Strobli.  S.  C.  196;  Woolf  v.  Chalker,  31  Conn.  122; 
Stumps  V.  Kelly,  22  111.  140.  This  was  an  action  on  the  case  for  injuries  by  a 
cow  having  hooked  a  woman,  and  caused  great  suffering,  injury,  expense  of 
cure,  and  loss  of  time.  The  language  of  the  Court,  by  Walker,  J.,  is:  "One 
jierson  has  no  right,  in  the  exercise  of  a  trade  or  business,  to  endanger  the  life 
or  health  of  another,  nor  by  so  doing  to  inflict  an  injury  upon  the  person  or 
property  of  another,  while  pursuing  his  lawful  avocations. 

"  While  the  appellant  has  thdtmdoubted  right  to  hold  and  enjoy  the  iiroperty, 
the  appellee  has  the  right  to  x^ass  the  public  highway  Avithout  being  injured  by 
the  property  of  the  appellant.  And  appellant,  failing  to  restrain  this  animal, 
after  knowing  its  propensity  to  hook  persons,  is  liable  to  injuries  that  may  result 
to  persons  by  her  running  at  large.  '  But  if  the  ox  were  wont  to  push  with  his 
horns  in  times  past,  and  it  hath  been  testitied  to  his  owner,  and  he  hath  not  kept 
him  in,  but  that  he  hath  killed  a  man  or  a  woman,  the  ox  shall  be  stoned  and  his 
owner  shall  be  put  to  death.' 

"  When  it  is  thus  commanded  by  the  great  Jehovah,  when  he  made  his  law 
known  to  man  in  the  midst  of  thunders  and  lightnings,  and  the  deep  cloud  that 
enveloped  Sinai,  attesting  His  visible  i)resence,  we  have  no  right  to  disregard  the 
iwinciples  of  divine  justice  thus  announced. 

"The  principle  contained  in  the  revelation  applies  with  full  force  to  a  case  re- 
sulting only  in  an  injury,  and  unquestionably  requires  that  it  shall  be  compen- 
sated by  payment  of  damages  by  the  owner  of  the  animal  to  the  person  injured. 

"By  the  law  of  the  twelve  tables,  it  was  provided  that  'if  a  horse,  apt  to 
kick,  should  strike-  with  his  foot,  or  if  an  ox,  accustomed  to  gore,  should 
wound  any  man  with  his  horns,  an  action  was  given  to  the  party  injured.' 
(Cooper's  Inst.  357.)  And  by  the  common  law,  the  owner  of  domestic  or  other 
animals,  not  naturally  inclined  to  commit  mischief,  as  dogs,  horses,  and  oxen, 
is  not  liable  for  any  injury  committed  by  them  to  persons  or  to  property,  unless 
it  can  be  shown  that  he  previously  had  notice  of  the  animal's  mischievous  pro- 
pensities, or  that  the  injury  was  attributable  to  some  other  neglect  on  his  jjart ; 
it  being  generally  necessary,  in  an  action  for  an  injury  committed  by  such  ani- 
mals, to  allege  and  prove  the  scienter.  (1  Ch.  Plead.  82. )  But,  with  the  notice  of 
the  vicious  propensity  of  the  animal,  the  action  must  be  case  and  not  trespass. 
Thus  it  is  seen  that  the  i^rinciple  of  responsibility  by  an  owner  of  an  animal 


§  177  DANGEROUS    ANIMALS.  238 

'I 

regarded  as  absolute ;  a  man  may  keep  an  animal  which  is 
dangerous,  provided  lie  keeps  him  inider  restraint,  so  that  per- 
sons pursuing  their  ordinary  or  lawful  avocations  are  not  ex- 
posed to  danger,^  The  general  rule  by  which  this  liability  is  to 
be  ascertained  is :  1st.  The  absolutely  vicious  character  of  the 
animal ;  2d.  The  knowledge,  on  the  part  of  the  owner,  of  the 
fact  that  danger  might  reasonably  be  apprehended  from  his  ani- 
mal beinc;  at  lar^e.^ 

§  177.  Negligence  in  guarding  dangerous  animals. — Or- 
dinary care  in  guarding  animals,  which,  from  their  sex  or 
nature,  may  be  vicious,  is  a  duty  which  the  citizen  OAves  to  the 
community,  and  which  he  neglects  at  his  peril. 

accustomed  to  commit  injuiy  upon  mankind,  and  knowing  its  vicious  propen- 
sities, is  imposed  for  all  injuries  it  may  inflict,  and  is  recognized  by  the  divine, 
and  the  civil,  as  well  as  the  common  law."  (Goodman  v.  Gay,  15  Penn.  188; 
Dickson  v.  McCoy,  39  N.  Y.  451;  Popplewell  v.  Pierce,  10  Gush.  [Mass.]  509; 
Kittredge  v.  Elliott,  IG  N.  H.  77;  Wheeler  v.  Brant,  23  Barb.  324;  Koney  v.  Ward, 
36  How.  P.  P.  255;  Marsh  v.  Jones,  21  Vt.  278.)  "  Defendant,  knowing  the  fero- 
cious disposition  of  his  dog,  and  that  it  had  been  accustomed  to  bite  persons,  and 
in  particular  that,  when  left  guarding  his  team  in  a  village  street,  it  had  attacked 
persons  passing  along  the  highway,  afterward  left  it  unsecured  and  unmuzzled, 
in  or  near  his  sleigh,  near  a  village  sidewalk,  and  a  child  of  seven  years,  pass- 
ing on  the  sidewalk,  came  to  the  sleigh  and  meddled  with  the  whip  lying  there- 
in, and  w'as  thereupon  thrown  down  and  bitten  by  the  dog.  Held,  that  i^laintiff 
was  liable  for  the  injury,  and  the  child's  act  in  meddling  ^vith  the  whip  was  no 
defense."     (Meibus  v.  Dodge,  38  Wis.  300;  A.  L.  J.  Feb.  19th,  1870,  p.  133.) 

1  Logue  V.  Linke,  4  E.  D.  Smith,  (N.  Y.)  63;  Dearth  v.  Baker,  22  Wis.  73;  Mere- 
dith V.  Peed,  26  Ind.  334. 

2  Vrooman  v.  Sawyer,  13  Johns.  339.  "  The  defendant  in  error,  who  was  plaintiff 
in  the  Court  below,  proved  that  the  bull  of  the  latter  had  gored  his  horse; 
but  there  Avas  no  evidence  that  the  bull  had  ever  before  done  similar  acts,  or 
that  he  liad  ever  before  been  unruly.  The  justice  gave  judgment  for  the 
plaintiff  below,  the  defendant  in  error. 

"Per  curiam. — The  judgment  is  clearly  wrong.  If  damage  be  done  by  any 
domestic  animal,  kept  for  convenience  or  use,  the  owner  is  not  liable  to  action 
on  the  ground  of  negligence,  ■without  proof  that  he  knew  that  the  animal  was- 
accustomed  to  do  mischief." 

Dyke  v.  Van  Leuven,  4  Denio,  128,  which  was  a  case  where  defendant's  hogs 
had  got  into  iilaintiff's  field  and  killed  a  cow  and  lier  newly  born  calf.  The 
Court  said:  "There  was  sufficient  evidence  to  warrant  the  jury  in  finding  that 
the  cow  and  calf  were  destroyed  by  the  defendant's  swine.  But  it  was  not 
shown  that  swine  ordinarily  have  a  proi^ensity  to  attack  and  destroy  animals 
in  the  condition  of  this  cow  and  calf  ;  nor  was  there  any  evidence  that  the  de- 
fendants were  aware  of  the  vicious  propensity,  in  this  respect,  of  these  swine. 
For  these  reasons  tlie  plaintiff  wholly  failed  to  show  any  right  of  action  against 
the  defendants. 

"  The  scienter  is  the  gist  of  the  action  in  tliese  cases,  and  the  principle  applies 
to  swine  as  it  does  to  other  domestic  animals."  (Van  Leuven  v.  Lyke,  1  Coms. 
[1  N.  Y.]  515  ) 


239  DANGEROUS    ANIMALS.  §  177 

No  man  lias  the  right  to  suffer  to  run  at  large  animals  of  a 
kind  dangerous  either  to  the  person  or  property  of  another ; 
and  if  he  does,  he  is  responsible  for  all  damages  which  result 
from  the  acts  of  such  animals  ;  he  is  bound  to  exercise  ordinary 
care  to  prevent  injury  being  done  by  them  to  the  person  or 
property  of  another.^ 

The  degree  of  care  required  to  constitute  "  ordinary  care  " 
depends  upon  the  character  and  disposition  of  the  animal,  and 
the  owner  is  liable  for  injuries  done  by  an  animal  of  the  class  man- 
suetcB  natura  only  upon  the  ground  of  negligence,  either  actual 
or  imputed  by  law,  in  view  of  the  owner's  having  had  express 
notice  that  the  animal  was  individually  of  a  mischievous  disposi- 
tion.^ 

1  Meredith  v.  Reed,  26  Ind.  334.  The  defendant  owned  a  stallion,  which,  pre- 
viously to  the  year  in  which  the  occurrences  detailed  transpired,  had  been  let  to 
mares,  but  he  was  not,  in  this  year,  so  let,  because  of  the  illness  of  his  owner. 
He  was  a  gentle  stallion,  and  had  never  been  known  by  the  owner  to  be  guilty 
of  any  vicious  acts.  Not  being  in  use,  he  had  been  kept  up  in  a  stable  for  four  or 
five  months.  He  was  secured  in  the  stable  by  a  strong  halter  and  chain,  fastened 
through  an  iron  ring  in  the  manger.  The  stable  door  was  securely  fastened  on 
the  inside  by  a  strong  iron  hasp,  passed  over  a  staple,  and  a  piece  of  chain 
i:)assed  two  or  three  times  through  the  staple  over  the  hasp,  and  the  ends  firmly 
tied  together  with  a  strong  cord.  It  was  also  fastened  on  the  outside  by  a  piece 
of  timber,  one  end  of  which  was  i^lanted  in  the  groimd,  while  the  other  rested 
against  the  door.  The  horse  was  thus  secured  on  the  day  and  night  the  injury 
occurred.  The  gate  of  the  inclosure  surrounding  the  stable  was  slu;t  and 
fastened  as  usual.  About  eleven  o'clock  tliat  night  the  horse  was  found  loose 
on  the  liighway,  and  did  the  injury  complained  of. 

Early  the  following  morning  the  outside  gate  was  found  open,  with  the  log  prop 
lying  some  distance  to  one  side,  and  the  chain  which  had  been  passed  through 
the  staple  was  gone,  and  the  cord  with  which  it  had  been  tied  was  found  cut, 
and  the  pieces  lying  on  the  floor. 

It  is  contended,  on  the  one  hand,  that  ordinary  care  was  all  the  law  required 
of  the  defendant  in  this  case.  On  the  other,  it  is  claimed  that  the  utmost  care 
was  necessary  to  free  him  from  liability.  Ordinary  care  is  all  that  the  law 
required.  What  is  ordinary  care  in  some  cases  would  be  carelessness  in  others. 
The  law  regards  the  circumstances  of  each  case,  and  tlie  nature  of  the  animal 
or  machinery  under  control.  Greater  care  is  required  to  be  taken  of  a  stallion 
than  of  a  mare;  so  in  the  management  of  a  steam  engine  greater  care  is  neces- 
sary than  in  the  use  of  a  plow.  Yet  it  is  all  ordinary  care ;  such  care  as  a  pru- 
dent, careful  man  would  take  under  like  circumstances.  The  degree  of  care  is 
always  in  proportion  to  tlie  danger  to  be  apprehended." 

2  Earl  V.  Van  Alstine,  8  Barb.  630;  Shearman  &  Redfield  on  Negligence,  Sec. 
192;  Fairchild  V.  Bentley,  30  Barb.  147.  The  defendant's  horse  having  injured 
the  plaintiff's  mare  by  biting  and  kicking  her,  through  the  fence  separating  the 
plaintiff's  land  from  the  defendant's,  held,  that  there  was  a  trespass  by  the  act 
of  the  defendant's  horse,  for  which  the  defendants  were  liable,  apart  from  any 
question  on  the  part  of  the  defendants.  (Ellis  v.  The  Loftus  Iron  Company, 
L.  R.  10,  C.  P.  10.) 


§§  178-9  DANGEROUS    ANIMALS.  240 

§  178.  Harborer  of  dangerous  animal  responsible  for 
damage,  "when. — One  who  harbors  a  dangerous  animal  on  his 
premises,  though  he  be  not  its  owner,  is  responsible  for  injuries 
committed  by  it  while  in  his  possession  to  the  same  extent  as  if 
he  owned  it.^  But  if  a  person  finds  upon  his  premises  an  ani- 
mal which  he  knows  to  be  vicious,  and  he,  in  good  faith,  at- 
tempts, but  fails,  to  drive  him  away,  he  is  not  liable.^ 

In  the  text-books  and  reports  of  cases,  the  "  owner  "  of  the 
animal  is  designated  as  the  person  who  shall  be  liable  for  dam- 
ages caused  by  a  vicious  animal ;  but  it  should  not  be  under- 
stood that,  in  all  cases,  this  liability  falls  upon  him  who  is  the 
legal  owner  of  the  animal,  or  that  he  is  the  only  person  thus  to 
be  held  responsible. 

The  owner  of  an  animal,  within  the  meaning  of  the  rule,  is 
the  person  who  has  the  control  of  it,  or  whose  duty  it  is  to 
have  such  control.  The  owner  is  presumptively  the  person  v/ho 
should  have  the  control  of  the  animal ;  and  from  this  arises  a 
corresponding  presumption  of  his  liability.  This  may,  how- 
ever, be  rebutted  by  a  showing  that  he  has  not  such  control,  or 
duty  of  control,  and  the  responsibility  is  avoided  by  him  if  he 
can  establish  that  fact. 

§  179.   Liability  ceases  when  vicious  animal  is  stolen. 

— If  the  animal  be  stolen  from  the  owner,  or  taken  in  replevin, 
or  other  claim  of  title  which  proves  ultimately  to  have  been 
without  foundation,  the  person  thus  taking  it,  and  not  the  real 
owner,  becomes  liable  for  damage  done  Avhile  thus  removed 
from  the  owner's  possession. 

Where  an  animal  is  hired  out,  or  even  if  it  is  simply  lent, 
and  the  liirer  or  borrower  has  exclusive  control  over  it,  he,  and 
not  the  ultimate  owner,  is  liable. 

But,  with  these  exceptions,  it  may  be  taken  as  the  law  that 

1  Wilkinson  v.  Parrott,  32  Cal.  102;  Frammel  v.  Little,  16  Ind.  251. 

2  Smith  V.  Great  Eastern  E.  R.  Co.  2  Law  Rep.  C.  P.  p.  4.  The  plaintiff  was 
bitten  by  a  stray  dog,  at  a  railway  station,  while  waiting  for  a  train.  It  was 
proved  that  at  9  a.m.  the  dog  flew  at  and  tore  the  dress  of  another  female  oa  th« 
platform;  that  at  10:30  he  attacked  a  cat  in  the  signal-box,. near  the  station, 
when  the  porter  there  kicked  him  out,  and  saw  no  more  of  him;  and  that  he 
made  his  appearance  again,  at  10:40,  on  the  platform,  where  he  bit  the  plaintiff. 
Held,  no  evidence  to  warrant  the  jury  in  liuding  that  the  company  had  been 
guilty  of  any  negligence  in  keeping  the  station  reasonably  safe  for  passengers. 


241  DAISTGEROUS   ANIMALS.  §  180 

the  party  injured  by  a  vicious  animal  may  recover  his  damages 
from  either  the  actual  owner  or  the  person  having  it  in  charge, 
where  he  can  show  that  such  owner  or  person  in  charge  v^as 
aware  of  the  evil  propensities  or  dangerous  character  of  the 
animal.^ 

§  180.  In  sale  of  dangerous  animal,  notice  must  be 
given. — As  to  what  notice  of  the  vicious  propensities  of  an 
animal  hired  out  or  loaned,  the  bailor  must  give  to  the  bailee, 
in  order  to  shift  from  the  owner  to  the  temporary  possessor  the 
responsibility  for  the  acts  of  a  dangerous  animal,  necessarily,  in 
this  connection,  becomes  an  important  question. 

Manifestly,  Avhere  the  possession  is  taken  from  the  owner 
feloniously,  or  in  any  way  against  his  will,  he  cannot  be  held 
liable  for  failure  to  convey  the  information  that  the  animal  is 
dangerous,  and  must  be  guarded  to  prevent  him  from  doing  in- 
jury ;  but  it  is  the  duty  of  the  owner  to  communicate  his 
knowledge  upon  this  point  to  any  person  borrowing  or  hiring 
the  animal.  The  duty  is  not  alone  to  the  bailee,  but  there  is  a 
responsibility  to  the  public  which  must  rest  upon  one  or  the 
other ;  primarily,  this  responsibility  is  imposed  upon  and  ac- 
cepted by  the  owner  of  a  dangerous  animal,  who  permits  it  to 
live,  and  he  can  only  shift  the  burden  of  it  by  informing  him 
upon  whom  he  would  put  it  off,  of  the  risks  he  takes,  so  that  he 
may  elect  whether  or  not  to  assume  them.^  A  lender  is  bound 
to  inform  the  borrower  of  any  defects  in  the  thing  lent  of 
which  he  is  aware,  whicli  render  it  dangerous  to  the  bor- 
rower ;  the  obligation  of  a  mere  lender  goes  no  further  than 
this.  He  cannot  be  made  liable  for  not  communicating  any 
thing  which  he  did  not  in  fact  know,  whether  he  ought  to 
have  known  it  or  not. 

One  who  lets  a  chattel  upon  hire  is  under  greater  obligations 
in  this  respect  than  a  mere  lender ;  in  the  former  case  he  war- 
rants the  thing  hired  to  be  fit  for  the  use  contemplated,  and 
therefore  warrants  it  against  vices  of  which  he  ought  to  be 
aware  .^ 

1  Marsh  v.  Jones,  21  Vt.  378;  Pickering  v.  Orange,  2  111.  492. 

2  Story  on  Bailments,  Sec.  275;  Blakemore  v.  Bristol  R.  R.  Co.  8  El.  &  Bl.  1035. 

3  McCarthy  v.  Young,  G  Hurlst  &  N".  329 ;  Story  on  Bailments,  Sees.  383,  390,  391a. 

Farm — IG. 


§  181  DANGEEOUS    ANIMALS.  242 

§  181.   Liability  of  joint  owners  of  dangerous  animals. 

—  Joint  owners  of  a  vicious  animal  are  each  bound  to  restrain 
him ;  if  lie  is  not  restrained,  and  one  owner  is  sued  and  com- 
pelled to  pay  damages  for  an  injury  done  by  him,  such  owner 
cannot  enforce  a  claim  for  contribution  against  the  co-owner. 
The  case  is  within  the  rule  that  there  is  no  right  to  contribution 
between  wrong-doers ;  and  to  show  that,  at  the  time  of  the 
injury,  the  animal  was  in  the  possession  of  the  defendant,  does 
not  take  the  case  out  of  the  jjeneral  rule.  To  constitute  it  an 
exception,  the  evidence  must  show  an  express  undertaking  on 
his  part  to  indemnify  his  fellow-owner  against  any  injury  by 
the  animal,  or  some  circumstances  from  which  such  undertaking 
or  obligation  may  be  implied.-'- 

1  Moody  V.  Black,  1  Sandf.  304;  Hawkins  v.  Appleljee,  2  Sandf.  421. 

Spaulding  v.  Wm.  E.  Oakes,  42  Vt.  343.  The  i>lamtiff  and  defendant  -were  the 
owners  in  common  of  a  ram,  Avliich  both  parties  knew  to  be  vicious  and  liable 
to  attack  persons.  Tlie  animal  was  kept  for  the  separate  use  of  both,  each  hav- 
ing the  immediate  charge  of  him  from  time  to  time,  as  occasion  required. 

At  a  time  when  the  ram  was  so  in  possession  and  charge  of  defendant,  one 
Mrs.  Oakes,  wife  of  Henry  Oakes,  while  driving  home  her  cows,  was  violently 
attacked  by  the  ram,  and  injured. 

]Mrs.  Oakes  and  her  husband  brought  suit  against  the  plaintiff  in  this  action 
for  the  damages  sustained  by  her ;  to  this  suit,  the  defendant  in  that,  i^laintiff 
in  this,  action,  made  defense  of  the  general  issue,  and  especially  that,  notwith- 
standing he  was  a  co-o-wner,  the  ram,  when  he  made  the  assault,  was  not  sub- 
ject to  his  control,  but  was  in  the  possession  of  his  co-owner,  Wm.  E.  Oakes ; 
that  he  was  being  kept  by  "Wm.  E.  Oakes  in  his  pasture,  over  Avhich  he,  Spauld- 
ing, had  no  control,  and  in  which  he  was  not  interested. 

Tlie  cavise  was  ably  tried,  and  carried  to  the  Supreme  Court;  Spaulding  Avas 
held  liable  for  the  damage  done.  (Henry  Oakes  and  Wife  v.  Spaulding  et  al.  40 
Vt.  347.)  The  decision  being  that  "  a  joint-owner  of  a  ram  is  chargeable  with 
damage  done  by  it,  by  butting,  while  in  the  pasture  of  his  co-owner,  although 
the  latter,  of  his  own  accord,  and  without  iiermission  of,  or  consultation  with, 
the  former,  and  in  his  absence,  took  the  ram,  and  put  it  into  his  pasture,  wliere 
the  injury  was  done,  without  trying  to  restrain  it,  the  former  having  given  no 
directions  as  to  restraining  the  ram,  and  not  having  been  consulted  as  to  the 
keeping,  care,  and  management  of  it." 

Thereupon,  being  compelled  so  to  do,  the  defendant,  Spaulding,  paid  a  large 
portion  of  the  judgment,  nearly  all  of  the  costs  and  expenses  of  counsel,  fees, 
etc. ,  and  brought  this  action  for  contribution. 

The  Court  lield  tliat,  under  the  circumstances,  there  could  be  no  contribution; 
that  "the  plaintiff  and  the  defendant  were  the  owners  in  common  of  a  vicious 
ram,  and  his  vicious  propensities  were  known  to  both  i-)arties.  The  animal  was 
keiit  for  the  separate  use  of  both,  each  having  the  immediate  cliargo  of  liim 
from  time  to  time,  as  occasion  reqiiired.  At  the  time  tlie  ram  did  tiie  injury, 
for  whicli  both  were  liable,  he  was  kept  by  the  defendant  on  liis  farm,  with  tlie 
knowledge  and  assent  of  plaintiff,  although  the  plaiutiiT  did  not  know  of  tlie 
defendant's  taking  him  at  the  time  when  he  was  taken.    The  plaintiff  knew 


243  DANGEROUS    ANIMALS.  §  182 

§  182.  The  measure  of  damages  for  injm'ies  by  vicious 
animals  is  controlled  by  the  general  rules  upon  that  subject. 

Actual  loss  is  the  measure  in  tort  Avhere  no  circumstances  of 
aggravation  are  shown/  and  where  the  injury  is  done  to  property 
the  rule  of  compensation  can  readily  be  applied ;  injuries  to  the 
person  are,  however,  more  difficult  to  estimate,  and  the  jury 
cannot  always  be  held  to  the  strict  line  of  compensation  which 
makes  good  an  actual  loss. 

In  regard  to  personal  trespasses  generally,  they  are  so  fre- 
quently accompanied  by  circumstances  of  aggravation  that  the 
question  of  strict  compensation  is  rarely  raised.  The  damages 
for  personal  injury,  in  cases  free  from  malice,  or  of  simple  neg- 
ligence, where  the  rule  seems  to  be  the  same,  should,^  as  far  as  a 
money  standard  is  applicable,  be  such  as  to  compensate  the  in- 
jured party  for  such  loss  of  time,  medical  and  other  expenses, 
physical  pain,  and  medical  distress,  as  are  fairly  and  reasonably 
the  plain  consequences  to  him  of  the  injury.^ 

Kemote  or — as  they  are  sometimes  styled — consequential  dam- 
ages are  not  to  be  regarded,  as  the  law  prohibits  any  allowance 
for  damages  remotely  resulting  from  the  principal  illegal  act, 
or,  in  the  lano;uao;e  of  Lord  Bacon :  "  It  were  infinite  for  the 
law  to  judge  the  causes  of  causes,  and  their  impulsion  one  on 
another.  Therefore,  it  contenteth  itself  with  the  immediate 
cause,  and  judgeth  of  acts  by  that,  without  looking  to  any 
further  degree."  ^ 

the  defendant  did  not  restrain  the  ram,  and  took  no  steps  to  do  so  himself. 
While  being  so  kept  by  defendant,  the  ram,  in  consequence  of  not  being  prop- 
erly restrained,  inflicted  said  injiary." 

Held,  that  the  parties  come  within  the  general  rule  of  wrong-doers,  between 
whom  there  can  be  no  contribution  or  indemnity. 

1  Sedgwick  on  the  Measure  of  Damages,  5th  Ed.  516,  586,  602. 

2  Seger  v.  Bark  Hamstead,  32  Conn.  290;  Peoria  Bridge  Association  v.  Loomis, 
20111.  235;  Masters?;.  To-w-nof  Warren,  27  Conn.  293;  Lawrence  v.  Housatonic  R. 
R.  Co.  29  Conn.  390;  Mason  v.  Town  of  Ellsworth,  32  Me.  271;  Hunt  v.  Hoyt,  20 
111.  544;  Morse  v.  Auburn  &  Syracuse  R.  R.  Co.  10  Barb.  621;  Ransom  v.  N.  Y.  & 
Erie  R.  R.  Co.  15  N.  Y.  415;  West  v.  Forrest,  22  Mo.  344.  If  the  injury  be  per- 
manent, compensation  shoiild  be  given  for  the  fviture  as  well  as  for  the  present 
disability.     (Frink  v.  Schroyer,  18  111.  416;  Slater  v.  Rink,  18  111.  527.) 

8  In  determining  the  item  of  compensation  for  personal  injury,  the  profits  of 
a  futiu-e  business,  of  which  plaintiff  has  been  deprived,  are,  in  general,  too  re- 
mote as  an  element  in  the  estimate  of  the  damages.  (Ballou  v.  Farnum,  11 
Allen,  73;  Caldwell  v.  Murphy,  1  Duer,  233;  Graber  v.  Darwin,  43  Cal.  495;  Sedg- 
wick on  Measure  of  Damages,  p.  56. ) 


§  183  DAXGEROUS    AISTIMALS.  244 

§  183.  The  light  to  kill  dangerous  animals,  in  order  to 
protect  human  life,  cannot  be  qncstioned ;  but  how  far  this  right 
extends,  in  the  matter  of  the  protection  of  property  alone,  is  a 
matter  worthy  of  consideration, 

A  docj  may  be  so  ferocious  as  to  become  a  public  nuisance ; 
and  in  such  cases,  if  his  owner  permits  him  to  run  at  large,  any 
person  may  kill  him.  Public  safety  and  convenience  justify  such 
a  rule  of  law.  The  animal  ceases  to  be  reclaimed  and  domesti- 
cated ;  he  is  dangerous  ;  is,  in  effect,  a  wild  beast,  and  may  be 
slain,  independent  of  statute  authority,  and  without  regard  to 
whether  he  was  doing  mischief  at  the  time,  or  the  question  of 
whether  his  owner  knew  of  his  vicious  disposition.^ 

But  this  reasoning  appears  to  be  applicable  to  dogs  alone,  and 
there  has  always  been  esteemed  to  exist  a  marked  distinction 
against  them  in  connection  with  other  domesticated  animals. 

Although  the  common  law  recognizes  property  in  the  dog,  it 
has  always  been  esteemed  a  base  property,  and  entitled  to  less 
consideration  and  protection  than  property  in  other  domestic 
animals.^ 

Other  animals  may  become  vicious  and  injure  persons  or  prop- 
erty, and  the  injured  party  may  have  his  action  for  damages, 

Karr  v.  Parks,  44  Cal.  46.  In  tliis  case,  the  plaintiff  sued  to  recover  for  services 
rendered  and  expenses  incurred  in  tlie  cure  of  wounds  inflicted  upon  liis  infant 
daughter  by  a  vicious  cow,  which  belonged  to  defendant ;  the  jury  awarded 
damages  in  the  sum  of  $3,262.  The  child,  after  the  injury,  had  proper  medical 
and  surgical  treatment,  and  recovered,  but  there  remained  an  eversion  of  the 
lower  eye-lid,  which  was  an  unseemly  disfigurement  of  the  face.  The  larger 
portion  of  the  expense,  of  which  plaintiff  gave  evidence,  and  for  which  he 
sought  to  recover,  was  incurred  in  the  endeavor  to  remove  this  disfigurement. 
For  this  jjurpose  the  child  was  taken  to  San  Francisco,  and  two  surgical  opera- 
tions were  ijerformed,  the  first  being  a  failure,  the  second  partially  successful ; 
the  amount  of  the  verdict  rendered  it  certain  that  the  expenses  attending  these 
operations  entered  largely  into  their  estimate  of  damages. 

The  judgment  was  reversed,  on  the  ground  that  the  evidence  should  have 
been  excluded,  on  defendant's  objection  to  it,  as  the  damages  sought  to  be 
proved,  viz.,  the  exiienses  of  these  two  surgical  experiments,  after  the  general 
recovery  of  the  child,  were  too  remote;  that  "there  would  practically  be  no 
limit  to  the  liability  of  the  defendant  if  the  father  coiild  pursue,  at  pleasure,  a 
series  of  expensive  surgical  operations,  for  the  purpose  of  removing  every 
trace  of  the  injury,  and  charge  the  defendant  with  the  entire  cost." 

1  Leonard  v.  Wilkins,  9  Johns.  233;  Hinkley  v.  Emerson,  4  Cow.  351;  King  v. 
Kline,  6  Penn.  St.  318;  Woolf  r.  Chalker,  31  Conn.  121;  Putnam  v.  Payne,  13 
Johns.  312;  Maxwell  v.  Palmerston,  21  AVend.  407 ;  Brown  v.  Carpenter,  26  Vt.  638; 
People  V.  Board  of  Police,  24  How.  Pr.  481;  Brown  v.  Hoburger,  52  Barb.  15. 

2  Woolf  V.  Chalker,  31  Conn.  121. 


"245  DANGEROUS    ANIMALS.  §  183 

but  may  not  kill  them,  unless  it  be  for  the  immediate  protection 
of  human  life,  and,  as  it  would  appear  from  the  later  decisions, 
great  damage  to  property,^ 

1  Ibid ;  Morse  v.  Nixson,  6  Jones  N.  C.  293,  -wliicli  was  a  case  in  ■which  a  hog  was 
killed  while  chasing  the  defendant's  chickens;  it  was  shown  that  the  animal 
was  predatory,  and  had  acquired  the  reputation  of  being  a  "  chicken-eating  hog" ; 
and  it  was  alleged  to  have  been  a  nuisance,  because  of  its  propensity  to  eat 
chickens.  The  Court  did  not  sustain  this  position,  but  held  that  ''the  position 
that  such  a  hog  is  a  public  nuisance,  and  may  be  killed  by  any  one,  is  not  sup- 
ported on  iirinciple  or  authority,  and,  if  recognized,  would  lead  to  monstrous  con- 
sequences. Allow  such  a  right,  and  the  peace  of  society  cannot  be  iireserved. 
It  is  provoking  to  see  an  old  sow  trying  to  catch  young  chickens,  and  snapping  up 
one  every  now  and  then  in  spite  of  the  noisy  protestations  and  energetic  remon- 
strances of  the  hen ;  but  it  is  not  reason,  and  therefore  not  law,  that  so  valuable 
an  animal  may  be  destroyed  to  save  the  life  of  an  unfledged  chicken.  At 
all  events,  the  danger  must  be  imminent,  and  the  necessity  be  fully  made  out." 
(Matthews  v.  Fiestel,  2  E.  D.  Smith,  90;  Dodson  r.  Mack,  4  Dev.  &  B.  146.) 

In  a  later  case,  (Williams  v.  Dixson,  65  North  Carolina,  416)  the  action  was 
trespass  vi  et  armis.  "The  plaintiff  owned  an  ass,  which  he  knew  to  be  danger- 
ous, and  in  the  habit  of  pursuing  and  injuring  stock,  and,  with  a  knowledge  of 
such  vicious  qualities,  he  permitted  him  to  run  at  large.  Held,  that  if  such  an 
animal  is  found  pursuing  a  cow,  which  he  threw  down,  and  was  in  the  act  of 
stamping  her,  when  the  defendant,  believing  it  was  necessary  to  kill  him  to  save 
the  life  of  his  cow,  killed  the  ass,  that  defendant  was  justifiable.  " 


§§  184-5  PASTURAGE    OF   ANIMALS.  246 


CHAPTER  XVII. 

PASTURAGE  OF  ANIMALS. 

§  184.  General  rules  of  bailment  applicable  to  agistors. 

§  185.  Agistors  not  insurers. 

§  186.  Implied  covenants  on  part  of  agistors. 

§  187.  Negligence  of  agistor's  bm:den  of  proof. 

§  188.  Agistors'  liability  for  trespass  by  animals. 

§  189.  Agistors  have  no  lien  at  common  law. 

§  190.  Agistors  have  no  lien  as  bailees  for  hire. 

§  191.  Agistors  have  i>ossessory  interest  in  animals. 

§  192.  Agistor's  powers  when  animals  are  injured  or  stolen. 

§  184.   G-eneral  rules  of  bailment  applicable  to  agistors. 

— One  who  takes  animals  to  pasture  at  certain  rates  ^  is  a  bailee 
for  hire  of  custody,  and  within  the  general  .rule  applicable  to 
such  bailments.^  His  contract  with  the  owner  of  the  animals 
is  a  hiring  of  care  and  attention,  commensurate  with  the  value 
and  liability  to  injury  of  the  animals  intrusted  to  him ;  bailees 
of  this  sort,  like  other  bailees  upon  a  contract  of  mutual  inter- 
est, are  bound  to  ordinary  diligence,  and,  of  course,  are  respons- 
ible for  losses  by  ordinary  negligence. 

By  the  Roman  law,  the  agistor  was  made  responsible,  not  only 
for  reasonable  diligence,  but  for  reasonable  skill  in  his  business, 
which,  indeed,  is  also  true  in  the  common  law ;  he  must,  at  his 
peril,  know  what  are  reasonable  precautions  against  loss  or  in- 
jury to  the  animals,  and  take  such  precautions  ;  ignorance  of 
what  is  his  proper  duty  is  not  only  no  excuse  for  a  failure  to 
discharge  it,  but  is  negligence,  for  which  the  law  will  punish  by 
holding  him  responsible  for  resulting  damages.^ 

§  185.  The  agistor  does  not  become  an  insurer  of  the  an- 
imals left  with  him  to  pasture  ;  if  they  stray  from  his  premises, 
are  stolen,  or  injured,  he  only  is  held  responsible  ujjon-it  being 

1  P.ouv.  Law  Die.  Vol  1,  105. 

2  Jones  on  Bailments,  91,  92;  Story  on  Bailments,  Sees.  442,  443. 
8'Dig.  Lib.  19,  Tit.  2,  L.  9,  Sec.  6;  Pothier  Pand.  Lib.  9,  Tit.  2,  N.  29. 


247  PASTURAGE    OF   ANIMALS.  §§  186-7 

shown  that  the  loss  or  injury  occurred  through  his  having  failed 
to  bestow  upon  them  ordinary  diligence  and  care  ;  he  only  cov- 
enants to  possess  and  exercise  reasonable  skill  in  his  business, 
and  he  comes  within  the  general  rul^  given  by  Dr.  Paley,  in  his 
treatise  on  Moral  Philosophy :  "  He  who  undertakes  another 
man's  business  makes  it  his  own — that  is,  he  promises  to  employ 
upon  it  the  same  care,  attention,  and  diligence  that  he  would  do 
if  it  were  actually  his  own,  for  he  knows  that  the  business  is 
committed  to  him  with  that  expectation ;  this  he  promises,  and 
no  more  than  this."  ^ 

§  186.  Implied  covenants  by  an  agistor,  to  give  due 
care,  provide  water,  and  not  over-stock  his  land,  result  from  the 
general  rules  on  bailment  applicable. 

The  covenant  goes  further  than  the  language  of  the  learned 
author,  above  quoted,  in  this,  that  it  might  well  occur  that  the 
agistor  gave  such  attention,  skill,  and  care  as  he  would  have 
done  had  the  property  been  his  own,  and  yet  fall  short  of  the 
requirements  of  the  law,  for  he  might  be  a  careless  person,  and 
habitually  give  to  his  own  affairs  less  than  a  due  amount  of  at- 
tention, skill,  and  care ;  the  measure  of  the  diligence  required 
of  him  is,  therefore,  such  as  a  prudent  person  would  ordinarily 
give  to  his  own  business  of  a  similar  character,  reference  being 
had  to  local  customs  and  usages,  the  value  of  the  animals,  their 
liability  to  injury  or  loss,  and  to  the  circumstances  of  each  case. 
Thus,  so  over-stocking  his  land  that  proper  pasturage  for  all  the 
animals  did  not  remain,  willfully  allowing  them  to  be  without 
water,  negligently  allowing  his  fences  to  remain  in  an  insecure 
condition,  or  leaving  open  his  gates  so  that  the  animals  stray 
and  are  lost,  are  familiar  instances  of  ordinary  negligence,  for 
damages  resulting  from  which  the  agistor  is  liable.^ 

§  187.  Burden  of  proof  on  charge  of  negligence  against 
an  agistor. — As  to  where  lies  the  burden  of  proof  when  neg- 
ligence is  the  ground  of  a  claim  for  damages,  in  the  case  of 
depositories  for  hire,  where  the  property  is  lost  or  injured,  the 
authorities  are   not  agreed.     In  England,  it  is   held  that  the 

1  Paley' s  Moral  Philosophy,  Book  3,  p.  1,  Chap.  12. 

2  Story  on  Bailments,  Sec.  443;  Jones  on  Bailments,  92;  1  Bell.  Comm.  p.  458, 
5th  Ed. ;  Ibid,  Sec.  394,  4th  Ed. 


§  187  PASTUEAGE    OF   ANIMALS.  248 

burden  is  upon  the  owner  of  the  property  ;  that  he  must  assume 
the  proof  of  negligence,  rather  than  impose  upon  the  defend- 
ant the  necessity  of  showing  that  he  has  exercised  ordinary, 
reasonable  care. 

The  general  presumption  obtains  that  the  party  who  contracts 
to  perform  the  service  will  do  so  in  an  honest,  proper  manner ; 
the  bailee  agi'ces  to  take  such  care  of  the  j^roperty  as  he  would 
do  were  it  his  own,  and  every  one  is  presumed  to  take  care  of 
his  own  concerns,  and  there  cannot  be  a  doubt  that  negligence, 
in  most  of  the  different  descriptions  of  bailees,  should  never  be 
presumed.^ 

In  the  United  States,  however,  this  general  proposition  has 
not  been  universally  acceded  to,  and  the  rule,  by  the  later  de- 
cisions, stands  so  far  modified  in  practical  effect  that,  although 
in  an  action  against  a  bailee  for  loss  of  or  injury  to  the  subject 
of  a  bailment,  the  burden  of  proof  of  negligence  rests  upon  the 
plaintiff;  yet  the  nature  of  the  accident,  loss,  or  injury  itself, 
may  afford  prima  facie  evidence  of  negligence.  If  it  is  one 
which,  in  the  ordinary  course  of  events,  w^ould  not  have  hap- 
pened but  for  the  want  of  proper  care  on  the  part  of  the  bailee, 
it  is  incumbent  ujDon  him  to  show  that  he  took  proper  care  and 
due  precaution  ;  and  his  failure  to  furnish  this  proof,  which,  if  it 
existed,  would  have  been  in  his  power,  may  subject  him  to  the 
inference  that  such  precautions  were  omitted.^ 

1 1  Ph.  on  Ev.  G05.  Odiosa  et  inJionesta  non  sunt  prczsumenda  (10  Pep.  56a.); 
Injuria  non  proisumuntur  (Co.  Litt.  2326.);  Omnia  pnesumu7itur  legitime  facta 
donee  prohatur  in  contrarium  (Co.  Litt.  2326.);  Fraus  est  odiosa  et  non  prossumenda 
(Cro.  Cur.  550)  are  maxims  of  daily  application  in  our  Courts. 

Schmidt  v.  Blood,  9  Wend.  268.  "A  warehouseman,  not  chargeable  with  neg- 
ligence, is  not  responsible  for  goods  intrusted  to  him,  stolen  or  erabezzled  by 
his  store-keeper  or  servant;  and  the  onus  of  showing  negligence  lies  upon  the 
owner." 

2  Boris  V.  Hartford  &ISr.  H.  P.  P.  Co.  37  Conn.  272.  "In  the  case  of  deposi- 
tories for  hire,  where  the  goods  are  lost,  the  authorities  are  not  agreed  as  to 
whether  the  burden  of  proof  of  negligence  is  on  the  owner  of  the  goods,  or  of 
reasonable  care  on  the  depository.  In  England,  it  is  held  that  the  burden  is 
upon  the  owner,  but  the  Courts  in  this  country  have,  in  some  cases,  held  oth- 
erwise." 

Lichtenheim  v.  Boston  &  Providence  P.  P.  Co.  11  Cush.  70.  Goods  on  storage 
had  been  stolen.  It  was  held  that  the  warehouseman  who  fails  to  deliver  prop- 
erty baile^l  to  him  is  bound  to  show  that  the  loss  occurred  without  a  want  of 
ordinary  care  or  diligence  on  his  part,  but  not  necessarily  the  precise  manner 
in  which  the  loss  occurred,  and  the  later  English  authorities  tend  to  the  same 
point.    (Smith  v.  Cook,  1  LawPeports,  79,  decided  December  Mtli,  1875.)    "An 


249  PASTUKAGE    OF   ANIMALS.  §  188 

§  183.  Agistor  liable  for  trespass  of  animals,  when. — 

The  agistor  may  become  liable  for  trespass  by  the  animals 
which  he  has  in  pasture.  By  the  common  law,  a  party  into 
whose  lands  agisted  animals  escape,  and  there  do  mischief,  may 
have  his  election  against  which  party  he  shall  maintain  his  ac- 
tion for  the  damage  suffered.  He  may  sue  either  the  general 
owner  of  the  animals,  or  the  person  who  has  them  at  pasture  ; 
and  if  the  owner  of  the  animals  is,  in  the  first  instance,  pro- 
ceeded against,  and  he  is  forced  by  the  law  to  make  good  the 

agistor  of  cattle  is  liable  for  damages  done  through  his  negligence,  by  a  vicious 
animal  in  his  care,  to  another  animal  also  in  his  care,  although  he  may  not  have 
known  the  mischievous  disposition  of  the  former. 

"  Plaintiff  delivered  a  horse  to  defendant,  to  be  agisted,  kept,  and  taken  care 
of.  The  defendant  iilaced  the  horse  in  a  field  with  a  number  of  heifers,  know- 
ing that  a  bull,  kept  on  adjoining  land,  had  several  times  been  found  in  the 
field,  and  that  there  was  no  sufficient  fence  to  keep  it  out. 

"He,  however,  did  not  know  that  the  bull  was  of  a  mischievous  disposition. 
The  horse  was  gored  by  the  bull,  and  killed.  "Witnesses  testified  that  it  was  im- 
prudent to  turn  young  horses  among  horned  cattle ;  others,  that  there  was  no 
danger  in  such  a  practice. 

"The  Court  left  to  the  jury  whether  the  defendant  acted  without  reasonable 
and  proper  care  in  putting  the  colt  in  the  field  near  the  bull  and  with  the 
heifers. 

"  Verdict  for  plaintiff. 

"A  rule  nisi  was  obtained  to  enter  a  nonsuit,  on  the  ground  there  was  no  evi- 
dence of  scienter. 

"Held,  that  defendant  was  boiind  to  take  reasonable  care  of  the  horse, 
and  that  if  it  was  killed  through  his  negligence  he  was  liable,  and  that  the 
doctrine  of  scienter  ought  not  to  be  extended  to  a  contract  to  take  reasonable 
care. 
"Pule  discharged. 

"Opinions  by  Blackburn,  Quinn,  and  Field,  J.  J."  (2  N.  Y.  Weekly  Dig.  73, 
Mar.  6th,  187G;  3  Cent.  L.  J.  March  24th,  187G.) 

Alden  v.  Pearson,  3  Gray,  342.  No  demand  is  necessary  before  commencing 
an  action  for  property  lost  or  destroyed  by  persons  having  it  in  custody. 

Collins  V.  Bennett,  46  N.  Y.  490.  A  horse  was  delivered  by  plaintiff  to  defend- 
ant to  be  kept  and  cared  for,  with  express  directions  to  take  his  shoes  off,  and 
give  him  only  such  exercise  as  could  be  done  by  leading  him  round  by  a  halter, 
and  to  let  him  go  bare-footed  all  winter;  defendant  violated  these  instructions 
by  keeping  the  horse  shod,  and  allowing  his  wife  to  use  it,  and  by  using  it  him- 
self; the  horse  was  foundered  and  rendered  worthless  while  in  defendant's  pos- 
session, and  when  found  by  plaintiff  to  be  in  this  condition  was  abandoned  to 
defendant,  and  this  suit  was  commenced  for  the  value  of  the  animal  before 
injury.  Held,  that  a  bailee  for  hire  who  uses  the  property  contrary  to  instruc- 
tions of  the  owner,  is  liable  for  a  conversion  thereof.  Where  property  in  the 
exclusive  possession  of  such  bailee  is  injured  in  a  way  that  ordinarily  does  not 
occur  without  negligence,  the  burden  of  proof  is  on  the  bailee  to  show  that  the 
injury  was  not  caused  by  his  negligence. 

Pussell  Mfg.  Co.  V.  New  Haven  Steamboat  Co.  50  N.  Y.  121.     "The  nature 
may  itself  afford  prima  facie  proof  of  negligence." 


§  189  PASTURAGE    OF   ANIMALS.  250 

amount  of  damage  done,  he  will  have  his  remedy  by  action  over 
against  the  agistor,  if  it  appear  that  the  trespass  occurred  by 
reason  of  his  neglect  or  improvidence. 

Under  the  common  law,  the  owner  or  custodian  of  animals 
was  bound  to  fence  them  in,  rather  than  compel  his  neighbor  to 
fence  them  out.  The  statutes  of  many  of  the  States,  and  the 
rulings  of  the  Courts  in  the  United  States,  have  established  the 
converse  of  this  as  the  rule  ;  but  if  animals  at  pasture  commit 
what  the  law  makes  an  actionable  trespass,  the  common-law 
rule  yet  remains  in  effect,  that  the  agistor  may  be  sued,  or  the 
owner  of  the  animals  be  proceeded  against,  at  the  option  of  the 
party  injured  ;  in  which  latter  case  the  owner  of  the  animals 
would  be  entitled  to  recover  from  the  agistor  the  amount 
which  he  had  been  obliged  to  pay,  if  the  trespass  can  be  traced 
to  a  neglect  on  the  part  of  the  bailee  to  take  ordinary,  reason- 
able precaution  against  the  trespass.-^ 

§  189.  An  agistor  has  no  lien,  at  common  law,  for  the 
pasturage  of  the  animals  which  have  been  left  with  him,  un- 
less an  express  agreement  to  that  effect  is  made  by  the  owner. 

Where  a  person  is  bound  by  the  law  to  do  certain  things,  by 
which  are  imposed  on  him  expense  or  trouble,  upon  or  about 

1 4  Kent's  Com.  120,  Note  6. 

Sheridau  v.  Bean,  8  Met.  284.  Certain  horses  which  belonged  to  Bean  were  at 
pasture  in  Spencer's  field.  They  trespassed  upon  the  field  of  plaintiiJ,  and  the 
question  submitted  to  the  Court  was  whether  the  action  of  trespass,  q%iere  clau- 
sum  fregit,  would  lie  against  the  owner  of  animals  at  agistment,  which  have 
strayed  from  the  agistor's  field  into  the  plaintiff's,  and  have  done  the  damage 
complained  of.  It  was  held  that  he  could,  and  the  Court,  by  Hubbard,  J.,  said: 
"In  the  case  of  trespass  by  cattle  agisted,  it  is  laid  down,  by  approved  writers 
of  former  times,  that  the  party  injured  has  his  election  to  sue  either  the  owner 
or  agistor  of  the  animals,  though  he  can  have  but  one  satisfaction.  ^  Si  mes 
avers  sont  en  le  yard  de  I.  S.  et  durant  cest  tetnpsfont  trespas  al  auter,  il  avera  tres- 
2MS  vers  moi  on  I.  S.  a  son  election,  mes  il  navera  satisfaction  d' amhidexix.'"  (2 
Eol.  Abr.  546,  cites  7  Hen.  IV",  31&. )  "While  there  is  an  apparent  hardship  in 
subjecting  a  i)erson  to  the  action  of  trespass,  where  the  cause  arises  from  the 
neglect  of  another,  yet  we  cannot  overlook  the  necessity  of  the  checks  which 
are  required  to  guard  against  this  sj^ecies  of  trespass,  which  is  not  only  so  easily 
committed,  but  is  so  difficult  to  prevent;  and  we  think  our  ancestors  intended 
to  give  an  amjile  remedy  by  subjecting  the  owner,  the  agent,  or  bailee,  and  the 
offending  animals  themselves,  to  making  good  the  damages  thus  committed. 
Nor  does  the  hardship  appear  so  great  when  we  consider  that  the  owner  has  his 
remedy  against  the  jierson  whom  he  employs,  and,  if  he  does  not  obtain  satis- 
faction for  his  loss,  it  is  rather  he  who  employed  a  negligent  person  that  should 
suffer,  than  the  man  who  is  injured  by  such  neglect." 


251  PASTURAGE    OP   ANIMALS.  §  189 

the  personal  property  of  another,  he  has  a  particular  lien  upon 
the  property ;  this  lien  is  given  by  the  law  as  an  offset  to  the 
arbitrary  requirement  that  the  service  shall  be  performed  when 
requested,  in  certain  trades  and  occupations,  which,  to  accommo- 
date the  public,  must  be  so  carried  on  that  all  persons  may  rely 
on  being  duly  served,  as  their  necessities  may  demand. 

Upon  this  ground,  common  carriers,  inn-keepers,  and  farriers 
had  a  particular  lien,  by  the  common  law,  because  they  were 
hounds  in  the  line  of  their  respective  employment,  to  serve  the 
public.  Although  it  is  probable  that  the  right  of  lien  in  their 
favor  had  its  origin  in  the  compensatory  principle  indicated, 
and  as  an  equivalent  for  the  obligation  to  serve  the  public,  this 
right  of  lien  is  not  now  confined  to  that  class  of  persons  who 
are  engaged  in  the  quasi-^vibYic  character  mentioned,  and,  in  a 
variety  of  cases,  a  person  has  a  right  to  detain  personal  prop- 
erty which  has  been  delivered  to  him  to  have  labor  bestowed 
on  it,  who  would  not  be  obliged  to  receive  it,  in  the  first  in- 
stance, contrary  to  his  inclination.^ 

1  Chapman  v.  Allen,  Cro.  Car. ;  2  Kent's  Com.  635  and  note  d. 

Goodrich  v.  Willard,  7  Gray,  183.  An  action  in  tort  for  conversion  of  cattle. 
At  the  trial,  plaintiii  showed  that  the  cattle  had  been  placed  in  his  possession 
to  be  pastured ;  he  claimed  a  lien  on  them  for  his  bill  for  keeping  them,  and 
showed  no  other  title.  The  Court  held  that  plaintiff,  as  such  agistor  of  the  cat- 
tle sued  for,  had  no  such  lien,  and  directed  a  verdict  for  defendant,  on  which, 
judgment  was  rendered  for  defendant,  and  plaintiff  appealed. 

The  judgment  was  affirmed.  The  language  of  the  Court,  by  Metealf,  J.,  was: 
"The  sole  question  on  these  exceptions  is  whether  an  agistor  of  cattle  has  a 
lien  on  them  for  their  keeping.  He  has  by  the  law  of  Scotland,  (2  Bell  Com. 
110)  but  the  common-law  authorities  are  uniform  that  he  has  not,  except  by 
special  agreement  with  the  owner."  (Jackson  v.  Cummings,  5  M.  &  W.  342; 
Cross  on  Lien,  25,  332;  2  Saund  PL  &  Ev.  2d  Ed.  2S9.) 

1  Dane,  Abr.  232 ;  Crinuell  v.  Cook,  3  Hill,  (N.  Y. )  491.  "  The  right  of  lien  has 
always  been  admitted  where  the  party  was  bound  by  law  to  receive  the  goods, 
and  in  modern  times  the  right  has  been  extended  so  far  that  it  may  now  be  laid 
down  as  the  general  rule  that  every  bailee  for  hire,  who,  by  his  labor  and  skill, 
has  imparted  an  additional  value  to  the  goods,  has  a  lien  upon  the  property  for 
his  reasonable  charges.  This  includes  all  such  mechanics,  tradesmen,  and 
laborers  as  receive  property  for  the  purpose  of  repairing,  or  otherwise  improv- 
ing its  condition.  But  the  rule  does  not  extend  to  a  li\^ery-stable  keeper,  for 
the  reason  that  he  only  keeps  the  horse,  without  imparting  any  new  value  to 
the  animal;  and,  besides,  he  does  not  come  within  the  policy  of  the  law,  which 
gives  the  lien  for  the  benefit  of  trade.  Upon  the  same  reason,  the  agistor  or 
farmer  who  jiastures  the  horses  or  cattle  of  another,  has  no  lien  for  their  keep- 
ing, unless  there  be  a  special  agreement  to  that  effect."  But  the  question  has 
recently  undergone  a  good  deal  of  discussion  in  England,  and  the  result  is  that 
the  old  cases  remain  unshaken,  and  it  must  now  be  regarded  as  the  settled 


§  190  PASTUKAGE    OP    ANIMALS.  252 

§  190.   An  agistor  has  no  lien  as  a  bailee  for  hire,  on  the 

groimd  that  his  services  have  given  an  additional,  special  value 
to  the  animals  which  he  has  pastured. 

It  is  now  the  accepted  rule  that  every  bailee  for  hire,  who 
has  given  to  the  subject  of  the  bailment  an  additional  value  by 
his  skill  and  labor,  has  a  charge  upon  the  property  for  his  com- 
pensation ;  thus,  a  miller  who  transforms  wheat  into  flour,  a 
tailor  who  makes  the  cloth  into  a  garment,  or  the  dyer  who  col- 
ors the  cloth  which  is  to  be  made  into  clothing,  each  give  to  the 
property  a  peculiar  character  or  value,  and  this  it  is  which  is 
deemed  to  be  their  property,  which,  having  a  right  to  retain, 
the  workman  has  a  lien  for. 

But  the  agistor  comes  within  neither  of  the  classes  of  per- 
sons in  whose  favor  a  lien  exists.  He  is  not  bound  to  receive 
animals  on  pasture ;  his  is  not,  therefore,  to  the  extent 
requisite,  a  public  employment,  and  the  necessity  for  his  en- 
couragement and  protection,  as  such,  does  not  exist.  He  gives 
by  his  labor  or  skill  no  additional  value  to  the  property,  and 
hence  all  the  standard  authorities  delare  the  rule  to  be  that  he 
has  no  lien  for  his  compensation.^ 

doctrine  that  agistors  and  livery-stable  keei^ers  have  no  lien,  unless  there  be 
a  special  contract  to  that  effect.  (Wallace  v.  Woodgate,  1  Car.  &  Payne,  575; 
Ey.  V.  Moody,  19.3,  S.  C. ;  Bevan  v.  Waters,  3  Car.  &  Payne,  520;  Judson  v.  Eth- 
ridge,  1  Cromp.  &  Mees.  743. ) 

Miller  I).  Marston,  35  Maine,  155.  "The  doctrines  of  particular  liens,  as  ap- 
plicable to  inn-keepers  and  those  who  are  bound  to  receive  goods,  and  to 
bailees  for  hire,  who  by  their  labor  and  skill  impart  additional  value  to  the 
goods,  have  never  been  extended  by  the  common  law  to  keepers  of  livery- 
stables  or  agistors  of  cattle."     (Story  on  Bailments,  Sec.  443.) 

1  It  must  be  acknowledged  that  the  doctrine  of  the  text  does  not  stand  without 
apparent  contradiction  at  the  hands  of  writers  of  acknowledged  ability,  and  judi- 
cial decisions  by  Courts  of  last  resort.  Thus,  in  Sec.  440  of  Story  on  Bailments  is 
found  the  following  language:  "Thus,  a  tailor,  who  has  made  a  suit  of  gar- 
ments out  of  the  cloth  delivered  to  him,  is  not  bound  to  deliver  the  siiit  to  his 
employer  until  he  is  paid  for  his  services.  Neither  is  a  shiii-carpenter  bound  to 
restore  the  ship  which  he  has  repaired,  nor  a  jeweler  the  gem  which  he  has  set,  or 
the  seal  which  he  has  engraved,  nor  an  agistor  the  horse  lohich  he  has  taken  on  hire, 
until  their  resj^ective  compensations  are  paid."  To  this  jiroposition  the  learned 
author  cites  2  Eoll.  Abr.  92;  Blake  v.  Nicholson,  3  Maule  &  Selw.  167;  Chase 
i;. Westmore,  5  Maule  &  Selw.  180 ;  Ex  parte  Deese,  1  Atk.  228.  But  an  examina- 
tion of  these  authorities  does  not  sustain  the  author  in  his  deduction  from  them 
as  to  an  agistor.  The  first,  in  effect,  is  against  the  proposition  to  whicli  it  is 
cited,  and  the  others  are  silent  upon  it.  Blake  v.  Nicholson  declares  a  lien  in 
favor  of  the  printer  who  fiirnished  paper  and  printed  a  work  called  Dr.  Hawker's 
Commentary  on  the  Bible,  and  in  no  wise  touches  uiion  the  subject  of  lien  in 


253  PASTURAGE  OF  ANIMALS.  §  192 

§  191.  The  agistor  has  a  possessory  interest  in  the  ani- 
mals which  he  takes  to  pasture,  and  in  them  has  a  temporary, 
qualified  property.  It  is  not  an  absolute  property,  because  of 
his  contract  for  restitution.  He  has  a  right  of  possession  against 
every  person  except  the  true  owner,  and  has,  therefore,  a  cause 
of  action  against  any  person  other  than  the  owner,  who  may  in- 
terfere with  his  possession,  and  can  maintain  trespass  or  trover 
against  a  wrong-doer  for  any  injury  to  his  possession,  or  any  con- 
version of  the  property.^ 

§  192.  Agistor's  po-wers  when  animals  are  injured  or 
stolen. — How  far  he  may  maintain  the  action  for  recovery  of 
damages  for  injury  to  the  animals  agisted  to  him,  has  been  mat- 
ter of  some  doubt ;  on  one  hand,  it  is  argued  that  if  an  animal 
agisted  is  injured  or  killed,  through  malice  or  actionable  negli- 
gence on  the  part  of  a  person  other  than  the  agistor,  the  agistor, 
having  no  interest  in  the  animal,  should,  therefore,  have  no  ac- 
tion, as  he  is  not  injured ;  that  the  action  can,  therefore,  only 
be  maintained  by  the  person  to  whom  the  animal  belongs,  as  he 
alone  is  damnified.  On  the  other  side,  it  is  urged  that  the  bailee 
is  interested  to  the  extent  of  his  bailment ;  that  it  would  be  im- 
possible for  him  to  pursue  the  vocation  of  an  agistor  if  the  ani- 
mals intrusted  to  his  care  might  be  injured,  and  he  be  powerless 
to  prevent  it  by  a  wholesome  fear,  on  the  part  of  the  wrong- 
favor  of  an  agistor.  Chase  w.Westmore  sustains  a  lien  in  favor  of  a  miller,  on 
the  sole  ground  that  he  has,  by  his  skill  and  labor,  given  a  new  and  more  valu- 
able character  to  the  property ;  and  Ex  parte  Deese  goes  but  to  the  length  to  de- 
clare that  a  lien  exists  for  his  compensation  in  favor  of  a  i^acker  of  goods.  Fur- 
thermore, the  same  author,  in  Note  3  to  Sec.  443  of  the  same  work,  (Story  on 
Bailments)  says:  "An  agistor  of  cattle  has  no  lien  for  their  keeping,  except  by 
special  agreement."  From  all  of  which  it  is  proper  to  suppose  that  the  language 
of  Sec.  440,  as  to  agistors,  is  the  result  of  some  oversight,  clerical  error,  or  mis- 
print, rather  than  an  intention  on  the  part  of  the  author  to  assume  a  position 
antagonistic  to  all  the  authorities,  and  to  the  note  to  Sec.  443. 

It  is  true  that,  in  some  of  the  States,  as  in  Nevada  and  Pennsylvania,  there 
are  express  statutes  giving  a  lien  for  board  and  pasturage  of  animals,  and  de- 
cisions have  been  rendered  sustaining  such  statutory  liens,  but  the  general  rule 
remains  as  given  in  the  text. 

1  Story  on  r>ailments.  Sees.  93  and  443;  2  Roll.  Abr.  551;  Sutton  v.  Buck,  2 
Taunt.  309,  per  Chambre,  J.  "An  agistor,  etc.,  a  factor,  a  carrier,  may  bring 
trover;  even  a  general  bailment  will  suffice,  without  being  made  for  any  special 
purpose,  but  only  for  the  benefit  of  the  rightful  owner.  It  would  be  monstrously 
inconvenient  if  a  wrong-doer  could  come  and  take  things  out  of  the  possession 
of  him  who  had  the  possession  under  the  rightful  o-rnier." 


§  192  PASTURAGE    OF   ANIMALS.  254 

doer,  of  being  held  responsible  to  him  who,  having  the  property 
in  his  immediate  charge,  can  most  promptly  bring  to  bear  the 
remedial  or  punitive  power  of  the  law. 

The  authorities  ajopear  to  favor  the  latter  view,  and  from  the 
decisions  of  the  Courts  it  seems  to  be  now  established,  with 
reasonable  certainty,  that,  for  damage  done  to  animals  in  his 
charge,  the  agistor  may  recover,  and  if  the  animals  be  stolen 
he  may,  in  his  own  name,  cause  the  thief  to  be  indicted.^ 

1  Story  on  Bailments,  Sec.  443;  Burton  v.  Hughes,  2  Bing.  E.  173;  Booth  u. 
"Wilson,  1  Barn.  &  A.M.  59.  In  this  case,  it  appeared  that  plaintiff  had  his  broth- 
er's horse  on  pasture;  the  defendant  owned  and  had  possession  of  the  adjoining 
land  to  plaintiff's  pasture ;  and  it  was  defendant's  duty  to  maintain  in  repair 
the  fence  between  the  tracts ;  he  neglected  this  duty ;  the  horse  got  through  the 
fence,  and  met  with  a  fatal  accident  on  defendant's  premises.  The  liability  to 
repair,  the  neglect  to  do  so,  and  that,  by  said  neglect,  the  horse  was  lost,  were 
admitted  by  defendant,  but  in  defense  it  was  urged  that  i^laintiff  had  not  such  a 
property  in  the  horse  as  to  entitle  him  to  maintain  this  action.  The  learned 
judge  who  tried  the  case  at  nisi  xirius,  however,  suffered  the  case  to  proceed,  and 
the  jury  found  a  verdict  for  the  plaintiff. 

An  appeal  was  taken,  and  the  judgment  of  the  Court  below  was  affirmed. 

The  several  judges  wrote  separate  opinions,  all  concurring,  and  that  of  Hol- 
royd,  J.,  covers  all  the  ground.  His  opinion  is  as  follows:  "The  plaintiff  was 
entitled  to  the  benefit  of  his  field,  not  only  for  the  use  of  his  own  cattle,  but 
also  for  putting  in  the  cattle  of  others ;  and  by  the  negligence  of  the  defendant 
in  rendering  the  field  unsafe,  he  is  deprived,  in  some  degree,  of  the  means  of 
exercising  his  right  of  using  that  field  for  either  of  those  purposes.  Whether, 
therefore,  the  damage  accrues  to  his  own  cattle,  or  the  cattle  of  others,  he  still 
may  maintain  this  action."    (2  Blackst.  Com.  pp.  452,  453.) 

Where  cattle  ivere  aUer/ed  in  the  indictment  to  be  the  property  of  the  person  loho, 
it  appeared  in  evidence,  loas  merely  the  agistor,  and  not  the  actual  oivner,  the  judges, 
held,  "that  he  may  maintain  trespass  against  any  who  takes  the  beasts,  all  the 
judges  agreed  that  the  conviction  was  right."  (Rex  v.  Woodward,  2  Easts,  Pleas 
of  the  Crown,  653. ) 

And  so  where  a  horse  is  sold  at  a  repository,  the  auctioneer  may  maintain 
trespass,  or  an  indictment  for  larceny,  in  his  own  name,  if  it  be  stolen  before 
delivery.    (Williams  u.  Millington,  1  H.  Bl.  81.) 


255  MALICIOUS    INJURY  TO   ANIMALS.  S  193 


CHAPTER  XVin. 

MALICIOUS  INJURY  TO  AXLMALS. 

§  193.  Malicious  mischief  as  a  common-la-w  oifense. 

§  194.  Malicious  mischief  in  the  United  States. 

§  195.  Actual  malice,  against  the  owner,  must  appear. 

§  196.  Criminal  statutes  as  to  injury  of  domestic  animals. 

§  197.  State  laws  as  to  malicious  injury  of  animals. 

§  198.  Laws  in  Georgia  as  to  malicious  injury  of  animals. 

§  199.  Statutes  concerning  malicious  injury  of  animals. 

§  200.  State  laws  as  to  damage  to  domestic  animals. 

§  201.  Malicious  injury  of  animals,  criminal  laws. 

§  202.  Laws  of  several  States  as  to  injury  of  domestic  animals. 

§  203.  Criminal  law  as  to  malicious  injury  of  animals. 

§  204.  Statutes  as  to  malicious  injuries  to  animals. 

§  205.  Construction  of  statutes  for  prevention  of  willful  injury  to  domestic 

animals. 

§  206.  The  definition  of  malice. 

§  207.  As  to  what  constitutes  "injury  to  animals." 

§  193.  Malicious  mischief  as  a  common-law  ofiFease  is, 

to  all  practical  intents,  unknown. 

In  England,  as  the  several  species  of  this  class  of  crime  be- 
came noticeable,  legislative  enactments  were  framed  for  public 
protection,  and  each,  in  turn,  was  specially  provided  against ; 
and  following  the  history  of  crime  back  as  far  as  the  reports 
go,  there  has  scarcely  been  a  conceivable  instance  in  which  mis- 
chievous injury  to  property  would  have  been  possible  without 
contravention  of  a  plain  statutory  provision. 

This  is  especially  noticeable  in  the  matter  of  prevention  of 
malicious  injuries  to  animals;  a  series  of  statutes,  twelve  or 
more,  beginning  with  37  Henry  VHI,  Chap.  6,  and  ending  with 
the  "  Black  Act,"  9  Geo.  H,  Chap.  22,  which  was  passed  "  for 
the  punishment  of  certain  marauders  who  committed  great 
outrages,  disguised,  and  with  faces  blackened,"  were  passed 
solely  to  prevent  wanton  mischief  to  domestic  animals. 

The  provisions  of  these  statutes  were  so  minute  that  distinct 
penalties  were  prescribed  for  every  conceivable  offense  :  thus,  the 


§  194  MALICIOUS    IXJUHY  TO    AXIMALS.  256 

cutting  out  of  a  cow/  the  breaking  of  the  fore-leg  of  a  sheep 
when  attempting  to  get  out  of  an  inclosure,^  the  wounding  of 
cattle  when  the  injury  was  only  temporary.^ 

Something  more  than  1,800  sections,  from  the  reign  of  Henry 
Vm  to  that  of  Geo.  Ill,  were  enacted  for  the  especial  pur- 
pose of  providing  against  malicious  mischief,  and  the  statutory 
provisions  being  so  ample,  and  thus  more  specific  and  certain 
than  the  common  law,  the  books  in  relation  to  this  class  of  of- 
fenses give  but  few  examples  of  common-law  indictments. 

§  194.  Malicious  mischief  in  the  United  States  has  been 
the  subject  of  frequent  adjudications  by  the  Courts,  as  the  later 
English  statutes  do  not  control  them  ;  and,  from  the  decisions 
of  American  Courts  upon  the  topics  involved,  an  American 
common  law  is  to  be  deduced.  In  these  cases,  the  proposition  is 
generally  maintained,  that,  without  being  obliged  to  rely  upon 
special  statutes,  malicious  mischief  is  a  crime  punishable  under 
the  law.4 

Acts  injurious  to  private  persons,  which  tend  to  excite  vio- 
lent resentment,  and  thus  produce  a  disturbance  of  the  peace, 
have,  in  America,  universally  been  held  indictable  ;  and  it  would 
appear  that,  although  from  the  fact  that  the  comparatively  late 
provisions  of  the  statute  law  in  England  have  measurably  su- 
perseded the  common-law  rules  applicable  to  such  offenses  as, 
by  their  wickedness  and  enormity,  lead  to  disregard  of  law  and 
breaches  of  the  peace,  nothing  is  to  be  inferred  against  the  ma- 
liciously injuring  domestic  animals  being  an  offense  at  common 
law,  from  the  circumstance  that  malicious  mischief  is  punish- 
able in  England  by  statutes,  which  are  there  so  universally  re- 

1  Stats.  37  Henry  Vni,  Cbap.  6;  People  v.  Brunell,  48  How.  Pr.  435. 

2  9  Geo.  I,  Chap.  22,  Sec.  6. 

3  9  Geo.  I,  Chap.  19. 

*  The  People  v.  Smith,  5  Cow.  258.  The  defendant  was  indicted  for  maliciously, 
wickedly,  and  loHlfully  killing  a  coio.  The  Court  said:  "The  offense  is  distin- 
guishable from  an  ordinary  trespass  in  this,  that  it  not  only  is  a  violation  of 
private  right,  without  color  or  pretense,  but  without  the  hope  or  expectation  of 
gain.  Such  an  act  discovers  a  degree  of  moral  turpitude  dangerous  to  society, 
and,  for  their  security,  ought  to  be  punished  criminally.  It  is  an  evil  example 
of  the  most  pernicious  tendency,  inasmuch  as  the  act  is  an  outrage  upon  the 
feelings  and  iirinciples  of  humanity.  The  direct  tendency  is  a  breach  of  the 
peace.  What  more  likely  to  prodvice  it  than  wantonly  killing,  out  of  mere 
malice,  a  useful  animal  ?"  (Pepublica  v.  Teischer,  1  Dall.  355;  Commonwealth 
r.  Taylor,  5  Binn.  277;  Commonwealth  v.  Leach,  1  Mass.  509.) 


257  MALICIOUS   INJURY  TO   AXIMALS.  §  195 

lied  upon  by  reason  of  their  ample  provisions.  The  statutes 
there  are  so  ancient,  and  the  punishments  provided  so  severe, 
that  they  have  come  to  be  habitually  relied  upon,  and,  as  a  mat- 
ter of  course,  resulted  in  causing  the  common  law  to  be  lost 
sight  of,  though  the  statutes  were  doubtless  intended  as  a  mere 
increase  of  its  penalties.^ 

Thus,  it  may  now  be  regarded  as  the  common  law  in  America 
that  it  is  an  offense  to  kill  a  horse  belonging  to  another,^  or  a 
cow,^  or  a  steer,^  or  any  beast  whatever  which  may  be  the  prop- 
erty of  another.^ 

§  195.  Actual  malice  against  the  owner  is  requisite 

under  charge  of  malicious  mischief  by  injury  to  animals.  At 
common  law,  leaving  entirely  out  of  sight  the  provisions  of 
the  statutes  relating  to  injuries  to  domestic  animals,  the  offense 
styled  "  malicious  mischief  "  has  been  so  far  ignored  as  to  espe- 
cially impose  upon  the  complaining  party  the  duty  of  alleging 
clearly,  and  fully  establishing  by  proof,  that  the  act  complained 
of  was  the  result  of  malice  on  the  part  of  the  person  who  com- 
mitted the  mischievous  act  against  the  owner  of  the  animals  in- 
jured. 

The  malice  charged  and  proved,  in  order  to  obtain  and  sustain 
an  indictment,  must  be  by  the  wrongdoer  against  the  owner  of 

1  State  V.  Briggs,  1  Aik.  226;  Loomis  v.  Edgerton,  19  Wend.  419. 

2  People  V.  Smith,  3  Cow.  258;  Com.  v.  Leach,  Ante,  Sec.  194,  Note  4. 

3  State  V.  Council,  1  Tenn.  305. 

4  State  V.  Scott,  2  Dev.  &  Batt.  35,  wliich  was  an  indictment  for  maliciously 
killing  a  steer. 

In  tliis  case,  the  Court  held  that  an  indictment  for  malicious  mischief  may 
conclude  at  common  law;  and,  in  such  indictment,  it  is  not  necessary  to  charge 
actual  malice  against  the  owner  of  the  property  injured.  (State  v.  Simpson,  2 
Hawks,  4G0. ) 

5  Loomis  V.  Edgerton,  19  Wend.  419.  "  Malicious  mischief  to  any  kind  of 
property  is  a  misdemeanor,  and  the  party  doing  the  injury  may  be  prosecuted 
criminalhj." 

Henderson  ■».  The  Commonwealth,  8  Grattan,  708.  "Though  the  mere  break- 
ing and  entering  the  close  of  another  is  not  a  misdemeanor,  yet,  if  the  entry  be 
attended  Ijy  circmnstances  constituting  a  breach  of  the  peace,  it  will  become  a 
misdemeanor  for  which  an  indictment  will  lie. 

"The  going  upon  the  jiorch  of  another  man's  house,  armed,  and  from  thence 
shooting  aud  killing  a  dog,  belonging  to  the  oAvner  of  the  house,  lying  in  the 
yard,  in  the  absence  of  the  male  members  of  the  family,  and  to  the  terror  and 
alarm  of  the  females  in  the  house,  is  a  misdemeanor  for  which  an  indictment 
will  lie." 

Farm— 17. 


§  195  MALICIOUS    INJURY  TO    ANIMALS.  258 

the  animals,  and  not  merely  the  sudden  temper  which  a  man 
may  feel  toward  the  animal.  It  is  to  be  regarded  as  prop- 
erty, malice  against  which  cannot  well  be  conceived ;  and 
hence,  injuries  to  animals,  following  the  general  rule,  to  consti- 
tute an  indictable  offense,  must  be  characterized  by  malice  to 
the  owner ;  and  such  malice  will  not  be  presumed  alone  from  the 
commission  of  an  injurious  act,  such  as  maiming  or  killing  the 
animal,  although  proof  of  that  act  may  be  received  as  evidence 
of  malice.^  A  late  decision  appears  to  attack  this  position,  and 
to  take  the  ground  that  malice  may  be  presumed  from  the  act 
of  injuring  another's  property,  and  that,  the  injury  being  proved, 
defendant  must  prove  absence  of  malice  ;  but  the  case  stands  so 
far  isolated  as  to  be  of  greater  value  because  of  the  discussion 
which  it  has  given  rise  to,  than  as  absolute  authority .^ 

1  Henderson  v.  Commonwealth,  8  Gratt.  70S. 

2  State  V.  Wheeler,  3  Vt.  347.  This  was  an  information  by  the  State ;  attorney 
alleging  "that  Daniel  Wheeler,  of  etc.,  on  etc.,  one  two-year-old  steer,  of  a  red 
color,  of  the  value  of  twenty  dollars,  of  the  goods  and  chattels  of  one  Ebenezer 
Davis,  etc.,  in  a  certain  iield  belonging  to  one  Simeon  Morse,  of  etc.,  ^ith  force 
and  arms,  feloniously  and  willfully,  maliciously,  mischievously,  and  wickedly, 
then  and  there  did  kill,"  it  was  held  that  a  mere  invasion  of  private  property, 
without  a  disturbance  of  tlie  peace,  is  not  an  indictable  offense,  but  is  a  jirivate 
injury  only,  for  which  an  action  of  trespass  lies;  that  an  indictment  will  not  be 
sustained  for  feloniously,  maliciously,  mischievously,  and  wickedly  killing  a 
beast,  the  property  of  anotlier ;  and  after  conviction  on  such  an  indictment,  the 
judgment  should  be  arrested. 

State  V.  Newby,  64  N.  C.  23.  To  constitute  malicious  mischief,  at  common 
law,  in  injuries  to  property,  malice  toward  the  owner  is  essential.  Such  malice 
will  not  be  inferred  from  a  merely  injurious  act,  such  as  killing  the  animal  of 
another. 

To  kill  an  animal  is  not  necessarily  an  offense,  but  is  only  rendered  one  by  the 
special  circumstances.     (Northcot  v.  State,  43  Ala.  330;  Hill  v.  State,  Id.  335.) 

"The  9  Geo.  I,  Chap.  22,  commonly  called  the  Black  Act,  declares  that  if  any 
person  or  iiersons,  whether,  etc.,  shall  unlawfully  and  maliciously  kill,  maim, 
or  wound  any  cattle,  every  person  so  offending,  being  lawfully  convicted 
thereof,  shall  be  adjudged  guilty  of  felony,  without  benefit  of  clergy,  etc.  It 
was  the  settled  construction  of  tliat  statute  that,  in  order  to  bring  an  offender 
within  its  firovisions,  malice  must  be  directed  against  the  owner  of  tlie  cattle, 
and  not  merely  against  the  animal  itself."  (2  East's  Crown  L.  1072-4;  The  State 
V.  Pierce,  7  Ala.  730,  Collier,  C.  J.,  arc/uendo.) 

"AVhat  constitutes  malicious  injury  to  property,  whether  at  common  law  or 
under  the  statutes,  has  been  the  siibject  of  many  decisions.  In  Reg.  w.  Welch, 
L.  J.  R.  (N.  S.)  753,  the  prisoner,  by  a  reckless  and  cruel  act,  caused  the  death 
of  a  mare.  The  jury  found  that  he  did  not  intend  to  maim,  wound,  or  kill  the 
animal;  but  he  knew  that  what  he  did  would  or  might  kill,  wound,  or  maim  her, 
and  that  he  nevertheless  did  the  act  recklessly,  and  not  caring  whetlier  the  mare 
was  injured  or  not.  Held,  that  there  was  sufficient  malice  to  support  a  convic- 
tion.   There  was  no  evidence  to  show  that  the  prisoner  was  actuated  by  any  ill 


259  MALICIOUS    INJURY  TO    ANIMALS.  §§  19G-7 

§  19S.  Statutes  making  it  a  crime  to  maliciously  injure 
domestic  animals. — The  common  law  is  not,  by  any  means, 
the  sole  reliance  of  the  people  of  the  United  States  as  a  pro- 
tection against,  and  a  means  of  punishment  for,  this  species  of 
crime  :  the  peculiar  annoyances  liable  to  be  suffered  from  the 
inroads  of  domestic  animals,  the  facility  and  comparative  safety 
from  detection  with  which  an  injury  committed  by  them  may  be 
avenged  upon  the  beasts,  the  ready  means  at  hand  to  visit  mal- 
ice against  the  owner  of  the  animals  by  injury  to  his  stock, 
have  been  found  to  be  sources  of  temptation  to  crime,  of  such 
a  character  as  to  demand  special  legislative  enactment  upon  the 
subject ;  so  that,  in  addition  to  the  common-law  remedies  and 
provisions  against  crime  of  this  nature,  the  several  States  have 
guarded  against  it  by  statute  laws  upon  their  respective  crim- 
inal codes,  providing  punishments  more  or  less  severe,  as  the  ex- 
igencies of  States,  the  character  and  business  pursuits  of  the 
people,  or  the  importance  of  the  subject,  appeared  to  require. 

§  197.   State  laws  as  to  malicious  injury  to  animals. — 

The  penal  code  of  Alabama  provides  that  "  any  person  who  un- 
lawfully and  maliciously  kills,  disables,  disfigures,  destroys,  or 
injures  any  animal,  the  property  of  another,  must,  on  convic- 
tion, be  fined  not  less  than  twenty  nor  more  than  five  hundred 
dollars,  and  may  also  be  imprisoned  in  the  county  jail,  or  sen- 
tenced to  hard  labor  for  the  county  for  not  more  than  six 
months." 

will  toward  the  owner  of  the  animal,  nor  by  any  spite  toward  t^e  animal  her- 
self, nor  by  any  motive  except  the  gratification  of  his  depraved  tastes.  The 
statutes  relating  to  malicious  injury  to  property  in  England  and  Ireland  have 
been  consolidated  in  the  Act  of  24  and  25  Vic.  Chap.  97.  The  American  statutes 
vary  somewhat  in  terms,  but  are,  in  the  main,  based  on  the  English  statutes. 
The  common-law  doctrine  was  that  the  malice  must  bo  against  the  o-mier  of  the 
property,  and  it  was  not  sufficient  that  there  should  be  ill  mind  toward  the  animal 
itself.  (Eex;-.  Pearce,!  Leach,  [ith Ed.]  527;  2  East's  P.  C.  1072.)  Bishop  remarks 
that  '  where  the  indictment  is  at  common  law,  the  American  doctrine  appears  to 
be  that  there  must  be  a  particular  malice  against  the  owner;  but  where  the  in- 
dictment is  draAvn  on  a  statute,  the  question  depends  partly  on  the  particular 
language  of  the  statute,  and  partly  on  the  differing  views  of  the  different 
judges.'  (Bishop  on  Stat.  Crimas,  Sec.  435.)  The  case  of  Reg.  v.  Welch,  Supra, 
seems  to  carry  the  doctrine  of  malice  in  injury  to  property  to  the  utmost  extent. 
According  to  Reg.  v.  Welch,  where  an  act  is  reckless  and  cruel,  and  likely  to 
result  in  injury,  it  is  malicious,  without  intent  to  kill,  maim,  or  wound."  (A.  L. 
J.  Feb.  2Gth,  1876,  pp.  140-1.) 


§  198  MALICIOUS    IJfJURY  TO    ANIMALS.  260 

Under  the  statute,  it  has  been  hehl  to  be  incumbent  on  the 
State  to  prove  actual  malice  toward  the  owner  of  the  animals, 
on  the  part  of  the  offender.^ 

In  California,  the  law  is  such  that  poisoning  animals,  the  prop- 
erty of  another,  or  maliciously  exposing  any  poisonous  sub- 
stance with  the  intent  that  the  same  shall  be  taken  or  swallowed 
by  any  such  animal,  is  punishable  by  imprisonment  in  the  State 
prison  not  exceeding  three  years,  or  in  the  county  jail  not  exceed- 
ing one  year,  and  a  fine  not  exceeding  $500.  And  every  person 
who  maliciously  kills,  maims,  or  wounds  an  animal,  the  property 
of  another,  is  guilty  of  a  misdemeanor.^ 

§  198.  Laws  in  Georgia  as  to  malicious  injury  to  ani- 
mals.— In  the  State  of  Georgia,  the  statute  law  is  such  that  if 
any  person  shall  maliciously  maim  or  kill  any  horse,  mule,  bull, 
.steer,  ox,  cow,  calf,  heifer,  or  shall  maliciously  kill  a  hog  or 
hogs,  such  person  shall,  npon  conviction,  be  punished  by  a  fine 
not  to  exceed  1^1,000;  imprisonment  not  to  exceed  six  months; 
to  work  in  a  chain-gang  upon  the  public  works  not  to  exceed 
twelve  months  :  and  any  one  or  more  of  these  punishments  may 
be  ordered,  in  the  discretion  of  the  judge.  "  Provided,  that  when 
the  person  killing  or  maiming  such  animal  or  animals  shall,  upon 
the  trial  therefor,  set  up  as  a  defense  that  such  killing  or  maim- 
ing had  been  done,  not  from  malice  toward  the  ow4;ier  of  said 
animal  or  animals,  but  to  prevent  injury  to  defendant's  growing 

1  Sec.  3733,  Revised  Code  of  Alabama;  Penal  Code,  Sec.  180.  The  real  essence 
of  this  offense  is  malice  toward  the  owner  of  the  animal  injured.  (Korthcot 
V.  The  State,  43  Ala.  330;  Hill  v.  The  State,  43  Ala.  335;  State  v.  Pierce,  7  Ala. 
728. )  There  is,  however,  an  apparent  contradiction  in  the  decisions.  In  John- 
son V.  The  State,  27  Ala.  459,  Walker,  C.  J.,  in  delivering  the  opinion,  said:  "  Un- 
der the  statute  now  under  consideration,  the  willful  performance  of  the  speci- 
fied acts,  as  well  as  the  malicious  performance  of  them,  constitutes  the  offense. 
It  was,  therefore,  proper  for  the  Court  to  charge  the  jvxry  that  proof  of  malice 
toward  the  mule  or  its  owner  was  not  indispensable." 

A  later  decision,  Hobson  v.  The  State,  44  Ala.  June  term,  1870;  indictment 
for  killing  a  hog.  Defendant  prayed  an  instruction,  to  the  effect  that  it  is  in- 
cumbent to  prove  that  the  defendant  killed  or  wounded  the  animal  both  unlaw- 
fully and  maliciously;  and  unless  the  jury  are  satisfied  beyond  a  reasonable 
doubt  that  the  defendant  had  malice  against  the  owner  of  the  hog,  they  must 
acquit.  The  instruction  was  refused,  and  the  case  went  up  on  appeal  on  this 
point.  Held,  that  the  refusal  to  grant  the  instruction  was  error ;  that  malice  to- 
ward the  owner  is  an  essential  ingredient  of  the  offense  of  malicious  injury 
to  animals. 

2  Penal  Code  of  California,  Sees.  59(5-7. 


261  MALICIOUS    IXJURY  TO    ANIMALS.  §  199 

or  matured  crops,  or  other  property,  such  defense  shall  not  avail 
to  acquit  the  defendant,  unless  it  shall  be  made  clearly  to  appear, 
before  the  Court  trying  the  same,  that  such  growing  or  matured 
crops,  or  other  property,  was  protected  by  a  substantial  fence, 
not  less  than  four  and  a  half  feet  high."  ^ 

§  199-   Statutes  concerning  malicious  injury  to  animals. 

— In  Illinois,  by  statute  provision,  every  person  who  shall  un- 
lawfully, wantonly,  willfully,  or  maliciously  kill,  wound,  dis- 
figure, or  destroy  any  horse,  dog,  or  other  useful  or  domestic 
animal,  the  property  of  another,  on  conviction  shall  be  fined  not 
exceeding  one  hundi'cd  dollars,  or  imprisoned  not  exceeding 
three  months,  or  botli.^ 

Under  this  statute,  it  has  been  held  that  a  party  may  be  con- 
victed of  malicious  mischief  in  wounding  an  animal  while  tres- 
passing in  his  field;  that  the  fact  that  the  animal  was  doing 
damage  does  not  justify  wounding  or  injuring  it.^ 

In  Iowa,  the  statute  provides  that  if  any  person  maliciously 
kill,  maim,  or  disfigure  "  any  domestic  beast  of  another,"  or 
maliciously  poisons  any  such  animal,  or  exposes  any  poisonous 
substance  with  the  intent  that  the  same  shall  be  taken  by  them, 
he  shall  be  punished  by  imprisonment  in  the  county  jail  not 

1  Code  of  Georgia,  1873,  by  Irwin,  Lester,  and  Hill,  Sees.  4310  and  4012.  Upon 
these  statutory  provisions,  it  has  been  held,  in  Georgia,  that  to  constitute  ma- 
licious mischief  it  is  not  necessary  to  j)rove  actual  ill-will  or  resentment 
against  the  owner  of  the  animals.  "  If  the  act  be  done  wantonly  and  recklessly, 
or  under  circumstances  which  bespeak  a  mind  prompt  and  disposed  to  the  com- 
mission of  mischief,  it  is  sufficient."     (Mosely  v.  The  State,  28  Ga.  190.) 

Where  a  party  was  on  trial  for  shooting  a  mule,  he  was  jiermitted  to  rebut 
the  iiresumption  of  malice  by  showing  that  he  killed  the  animal  to  protect  his 
crop — it  appearing  that  the  mule  was  in  defendant's  corn-field;  that  he  was  a 
mischievous  animal,  and  was  hard  to  restrain  from  trespassing.  (Wright  r.  The 
State,  30  Ga.  325. ) 

2  Illinois  Criminal  Code,  p.  81,  Sec.  209. 

3  Snap  V.  The  People,  19  111.  80.  A  mare  was  trespassing  in  a  field  of  oats, 
protected  by  a  sufficient  fence ;  the  owner  of  the  field  directed  his  hired  man  to 
shoot  her,  which  he  did — in  the  flank,  with  fine  shot — thereby  injuring  the  ani- 
mal temporarily ;  the  master  and  servant  Avere  indicted,  and  convicted.  On  ap- 
peal, the  judgment  was  affirmed. 

Caton,  C.  J.,  in  delivering  the  opinion  of  the  Court,  said:  "It  is  a  violation 
of  the  common  law,  as  well  as  of  the  statute,  for  a  person  to  shoot  or  wound 
stock  found  trespassing  on  his  premises.  He  may  expel  them,  and  use  the 
necessary  force  for  that  purpose,  doing  them  no  unnecessary  damage;  or  he 
may  take  them  up,  damage  feasant ;  but  the  law  of  right,  as  well  as  of  human- 
ity, forbids  him  to  inflict  an  unnecessary  injury  upon  the  brute." 


§§  200-1  MALICIOUS    IX JURY  TO   ANIMALS.  262 

exceeding  one  year,  or  by  fine  not  exceeding  three  hundred 
dollars.^ 

§  200.   State  laws  as  to  injury  of  domestic  animals. — 

In  Kansas,  the  provisions  of  the  statute  law  are  such  that  any 
person  who  shall  maliciously  wound,  maim,  or  poison  the  do- 
mestic animal  of  another,  shall,  on  conviction,  be  punished  by 
confinement  and  hard  labor  not  exceeding  three  years,  or  im- 
prisonment in  the  county  jail  not  less  than  twelve  months.^ 

In  Kentucky,  there  is  a  statute  law  providing  that,  "  if  any 
person  shall  willfully  kill,  disfigure,  or  maim  any  horse,  cow, 
mule,  jack,  or  jennet,  not  his  own,  without  the  consent  of  the 
owner,  he  shall  be  fined  not  less  than  ten  nor  more  than  one 
hundred  dollars,  or  be  imjDrisoned  not  less  than  one  nor  more 
than  six  months."  ^ 

By  the  criminal  statute  of  Louisiana,  whoever  shall  wantonly 
or  maliciously  kill  any  domestic  animal,  the  j^roperty  of  another, 
shall  be  fined  in  a  sum  not  exceeding  two  hundred  dollars,  or 
be  imprisoned  not  exceeding  six  months,  and  shall  pay  to  the 
owner  of  the  animal  killed  the  value  thereof ;  whoever  shall, 
wantonly  or  maliciously,  cruelly  beat,  maim,  or  disable  such 
animal,  shall  be  fined  not  exceeding  one  hundred  dollars,  or  be 
imprisoned  not  exceeding  one  month,  and  shall  pay  to  the  owner 
any  damage  he  may  sustain  in  consequence  thereof.^ 

In  Maine,  there  is  a  statute  law  as  follows :  "  Whoever  Avill- 
fully  or  maliciously  kills,  wounds,  maims,  disfigures,  or  poisons 
any  domestic  animal,  or  exposes  any  poisonous  substance  with 
intent  that  the  life  of  any  such  animal  should  be  destroyed 
thereby,  shall  be  punished  by  imprisonment  not  more  than  four 
years,  or  by  fine  not  exceeding  five  hundred  dollars."  ^ 

§   201.    Malicious   injury   of    animals — Criminal   lav/s. 

— The  Maryland  statute  is  to  the  effect  that  if  any  one  will- 
fully and  maliciously  kill,  Avound,  or  maim  a  domestic  animal 

1  Laws  of  Iowa,  Revision  of  18C0,  p.  739,  Sec.  4318. 

2  Cxenl.  Statutes  of  Kansas,  18G8,  p.  3.37,  Sees.  101,  102. 

3  Revised  Statutes  of  Kentucky,  Staunton,  Vol.  1,  411,  Sec.  8. 

4  Eevisecl  Statutes  of  Louisiana,  1870,  p.  1G3,  Sees.  815,  81G. 

5  lleviscd  Statutes  of  Maine,  1871,  p.  8(;i,  Sec.  1.     Tliis  section  might,  in  strict 
construction,  prevent  the  owner  from  killing  his  own  animals. 


263  MALICIOUS    INJURY  TO   ANIMALS.  §  201 

not  his  own,  "  and  not  in  the  act  of  trespassing  upon  his  inclos- 
ures,  he  shall  undergo  a  confinement  in  the  penitentiary  for  not 
less  than  eighteen  months,  or  more  than  four  years."  ^ 

In  Massachusetts,  the  criminal  statute  is  that  "  whoever  will- 
fully or  maliciously  kills,  maims,  or  disfigures  any  horses,  cat- 
tle, or  other  beasts  of  another  j^erson,  or  willfully  and  ma- 
liciously administers  poison  to  any  such  beasts,  or  exposes  any 
poisonous  substance  with  intent  that  the  same  shall  be  taken  or 
swallowed  by  them,  shall  be  punished  by  imprisonment  in  the 
State  prison  not  exceeding  five  years,  or  by  a  fine  not  exceeding 
one  thousand  dollars,  and  imprisonment  in  the  county  jail  not 
exceeding  one  year."^ 

It  has  been  held,  in  this  State,  that  the  charge  under  the  stat- 
ute cannot  be  sustained,  unless  it  be  alleged  and  proved,  to  the 
satisfaction  of  the  jury,  that  the  injury  was  committed  not  only 
wantonlj^,  but  with  malice  to  the  owner.'^ 

A  construction  of  these  statutes,  as  late  as  1871,  extends  their 
operation  from  horses,  cows,  and  the  other  quadruped  animals 
which,  from  usage,  have  come  to  be  known  as  "  domestic  "  ani- 
mals, to  poultry ;  so  that  the  penalties  imposed  by  the  statute  are 
held  to  apply  to  persons  convicted  of  having  poisoned  hens 
which  did  not  belong  to  them.* 

1  Maryland  Code,  Public  General  Laws,  Vol.  1,  p.  215,  Sec.  39. 

2  Genl.  Statutes  IMass.  -p.  805,  Sec.  80.  An  indictment  which  charges  the  def  end- 
dant,  in  the  words  of  the  statute,  with  willfully  and  maliciously  administering  a 
certain  poison  to  the  horse  of  another  person,  is  sufficient,  without  furtlier  aver- 
ment of  any  criminal  intent,  or  of  any  injury  to  the  horse.  (Commonwealth  v. 
Brooks,  9  Gray,  249;  Same  v.  Sowle,  Ibid,  304.) 

It  is  an  indictable  offense  at  common  law  to  maliciously  and  "willfully  poison 
a  cow,  the  property  of  another.     (Commonwealth  v.  Leach,  1  Mass.  54.) 

3  Commonwealth  t!.  Walden,  3  Cush.  558.  "The  word  'maliciously,'  relating 
to  malicious  mischief,  is  not  sufficiently  defined  as  '  the  willfully  doing  of  any 
act  prohibited  by  law,  and  for  which  the  defendant  had  no  lawful  excuse.'  " 

This  was  an  indictment  under  a  former  statute,  similar  to  the  one  now  in 
force  and  given  in  the  text,  for  shooting  a  mare.  The  judge  in  the  Court  below 
charged  the  jury  as  above,  and  on  appeal,  this  charge  was  held  error.  The  ojiin- 
ion  of  the  higher  Court  was,  that  "the  jury  sliould  have  been  instructed  that, 
to  authorize  them  to  find  the  defendant  guilty,  they  must  be  satisfied  that  the 
injury  was  done  either  oiit  of  a  spirit  of  wanton  cruelty,  or  wicked  revenge." 
Malicious  mischief,  amounting  to  a  crime,  is  so  deiined  by  Blackstone,  (4  Bl. 
Com.  244)  and  in  the  standard  works  generally. 

4  Commonwealth  v.  Mary  E.  Falvey,  108  Mass.  304.  The  lady's  patience  be- 
came exhausted,  and  deeming  herself  justified  by  the  annoyance  caused  by  her 
neighbor's  poultry,  she  poisoned  them;  was  indicted,  tried,  and  convicted  there- 


§  202  .    MALICIOUS    INJURY  TO    AXIMALS.  264 

§  202.  La-ws  of  several  States  as  to  injury  of  domestic 
animals. — In  Mlcliigan,  the  crime  of  maliciously  and  willfully 
])oisoning,  maiming,  or  killing  horses,  cattle,  or  other  beasts  of 
another,  is  by  statute  punishable  by  imprisonment  in  the  State 
prison  not  more  than  five  years,  or  by  fine  not  exceeding  one 
thousand  dollars,  and  imprisonment  in  the  county  jail  not  more 
than  one  year.^ 

The  statute  in  Minnesota  provides  that  whoever  willfully  and 
maliciously  kills,  maims,  or  wounds  any  domestic  animals  which 
do  not  belong  to  him,  shall,  on  conviction,  be  punished  by  im- 
prisonment not  more  than  two  years  or  less  than  three  months, 
or  by  fine  not  more  than  five  hundred  or  less  than  fifty  dollars.^ 

In  Mississippi,  by  statute,  it  is  provided  that  whoever  shall 
maliciously,  or  out  of  a  spirit  of  revenge  or  wanton  cruelty, 
kill,  maim,  or  wound  any  horse,  etc.,  shall  be  fined  not  less  than 
twenty-five  or  more  than  three  hundred  dollars,  or  be  impris- 
oned not  less  than  three  or  more  than  six  months ;  and  if  any 
person  shall  cut  off  or  shave  the  tail  of  any  horse,  mare,  geld- 
ing, or  colt,  not  his  own,  he  shall  be  liable  to  the  same  penalty.^ 

In  Missouri,  the  criminal  statute  provides  that  every  person 
who  shall  willfully  kill,  poison,  maim,  or  wound  any  cattle  of 
another,  shall  be  punished,  on  conviction,  by  imj)risonment  not 
less  than  six  months  or  more  than  three  years,  or  fine  not  less 
than  two  hundred  and  fifty  dollars ;  or  by  fine  not  less  than 
one  hundred  dollars,  and  imprisonment  in  the  county  jail  not 
less  than  three  months.^ 

for,  under  tlie  statute  cited.      On  ajipeal  from  the  judgment  of  conviction,  the 
rulings  of  the  lower  Court,  on  which  the  conviction  was  had,  were  sustained. 

The  Supremo  Judicial  Court  of  Massachusetts  say:  "The  construction  con- 
tended for  hy  the  defendant  would  require  vis  to  hold  that  the  statute  legalizes 
the  use  of  i)oison  for  the  willful  and  malicious  destruction  of  any  personal  prop- 
erty of  another,  not  included  under  the  descriirtion  of  '  horses,  cattle,  or  ether 
beasts.'  It  is  impossible  to  believe  that  such  could  have  been  the  purpose  of 
the  statutes." 

1  Compiled  Laws  Michigan,  Vol.  2,  p.  2088,  Sec.  759G. 

2  Statutes  at  Largo  of  Minnesota,  1873,  j).  1000,  Sec.  108.  By  a  recent  decision 
( Judson  V.  lleardon,  IG  Minn.  431  et  seq.)  a  delinition  of  malice  is  given,  aj^pa- 
rently  in  conflict  with  Commonwealth  v.  Walden,  3  Cush.  558. 

Here  it  is  held  that,  "from  the  willful  doing  of  an  injvirious  act,  without 
lawful  excuse,  the  law  imiilies  malice,  and  this,  though  the  defendant  supjiosed 
he  was  acting  in  conformity  to  law." 

3  Statute  Laws  of  Mississipx^i ;  Howard  v.  Hutchinson,  p.  G73,  Sec.  44. 

•*  Statutes  of  Missouri,  1870,  (Wagner)  p.  462,  Sees.  54,  55.    Strictly,  this  stat- 


265  MALICIOUS   INJURY  TO    ANIMALS.  §  203 

The  New  Jersey  criminal  statute  makes  the  willful  or  ma- 
licious killing  of  any  domestic  animal  a  crime,  punisliable  by 
fine  not  exceeding  one  hundred  and  fifty  dollars,  or  imprison- 
ment at  hard  labor  not  exceeding  two  years,  or  both.^ 

The  statutes  of  New  York  make  a  misdemeanor  of  the  ma- 
licious killing  or  maiming  of  any  animal,  the  property  of  another, 
and  visit  with  heavy  penalties  the  crime  of  poisoning  animals, 
the  property  of  another,  to  wit :  imprisonment  in  the  State 
prison  for  a  term  of  not  more  than  three  years,  or  in  a  county 
jail  for  not  more  than  one  year,  or  by  a  fine  of  not  more  than 
two  hundred  and  fifty  dollars,  or  by  both  fine  and  imprisonment.^ 

§  203.   Criminal  law  as  to  malicious  injury  to  animals. 

— In  Pennsylvania,  it  is  provided,  by  statute,  that  he  who  shall 
willfully  kill,  maim,  or  disfigure,  or  administer  poison  to  any  do- 
mestic animal,  not  his  own,  shall  be  guilty  of  a  misdemeanor, 
and  be  punished  by  fine  not  exceeding  five  hundred  dollars,  or 
imprisonment  not  more  than  three  years.^ 

In  North  Carolina,  such  malicious  mischief  is  made  a  misde- 
meanor, and  punished  accordingly."^ 

In  Ohio,  the  value  of  the  animal  is  made  a  standard  as  to 
the  gravity  of  the  offense ;  to  willfully  kill  an  animal,  the 
property  of  another,  is  by  statute  made  a  misdemeanor ;  if  the 
animal's  value  is  as  much  as  thirty-five  dollars,  the  penalty  is 
imprisonment  not  more  than  three  years  nor  less  than  one ;  if 
the  beast  is  worth  less  than  thirty-five  dollars,  then  the  penalty 
imposed  is  a  fine  of  not  more  than  two  hundred  or  less  than 
five,  or  imprisonment  not  exceeding  three  months,  or  both  fine 
and  imprisonment. 

But  an  exception  from  the  operation  of  the  statute  is  made 
in  the  case  where  the  animals  are  trespassing  on  the  inclosurc 
of  the  person  who  kills  or  maims  them;  or  where  the  injury  to 
the  beasts  is  to  prevent  them  from  trespassing.^ 

ute  applies  to  "cattle"  alone,  but  the  term  would  probably  be  construed  to 
include  all  domestic  animals.     (Commonwealth  v.  Falvey,  108  Mass.  SOi.) 

1  Nixon's  Digest  Laws  of  New  Jersey,  p.  205,  Sec.  70. 

2  Penal  Code  of  New  York,  p.  259,  Sees.  698,  699. 

3  Purden's  Digest,  by  r>rightly,  p.  242,  Sec.  163. 

^  Revised  Code  of  North  Carolina,  p.  223,  Sec.  104. 

5  Revised  Stats,  of  Ohio,  Swan  &  Critchfield,  Vol.  1,  p.  74,  Sees.  23-25. 


§  204  MALICIOUS    INJURY  TO    ANIMALS.  2G6 

In  the  statute  law  of  Tennessee,  to  willfully  and  maliciously 
kill,  maim,  or  poison  a  domestic  animal,  worth  less  than  ten  dol- 
lars, the  property  of  another,  is  made  punishable  by  a  fine,  and 
imprisonment  in  the  county  jail  not  exceeding  three  months,  and 
payment  to  the  owner  of  the  value  of  the  animal ;  such  offense 
against  an  animal  worth  more  than  ten  dollars,  is  punishable  by 
imprisonment  in  the  penitentiary  not  less  than  one  nor  more 
than  five  years,  and  the  owner  of  the  beast  shall  also  have 
awarded  to  him  its  value,  and  such  award  the  culprit  must  pay.^ 

§  204.   Statutes  as  to  malicious   injury  to  animals. — 

Texas  statute  law  makes  it  a  crime  to  willfully  kill,  maim,  dis- 
figure, or  poison  a  domestic  animal  OAvned  by  another  person, 
and  makes  the  offense  punishable  by  fine,  not  less  than  thrice 
or  more  than  ten  times  the  amount  of  injury  donc.^ 

In  Vermont,  the  statute  provides  that  every  person  who  shall 
maliciously  and  willfully  maim,  disfigure,  poison,  or  kill  any 
domestic  animal,  which  does  not  belong  to  him,  shall  be  pun- 
ished by  imprisonment  in  the  State  prison  not  more  than  five 
years,  or  by  fine  not  exceeding  five  hundred  dollars,  or  by  both 
fine  and  imprisonment.^ 

In  Wisconsin,  this  offense  is,  by  the  statute  as  to  crimes, 
made  punishable  by  imprisonment  not  less  than  three  months 
nor  more  than  two  years,  or  by  fine  not  less  than  fifty  nor  more 
than  five  hundred  dollars ;  provided,  that  the  property  being 
less  than  three  dollars  in  value,  the  punishment  shall  be  a  fine 
of  not  less  than  five  nor  more  than  fifteen  dollars."^ 

1  Stats,  of  Tennessee.  Compilation  by  Thompson  &  Steger,  Vol.  3,  p.  61,  Sees. 
4G57,  4G58.  How  much  he  may  be  lined,  when  the  beast  is  worth  less  than  ten 
dollars,  the  statute  does  not  sjiecify;  and  in  all  of  these  statutes,  where  tlie 
value  of  the  animal  is  naade  the  standard  of  pi;nishment,  there  is  an  apparent 
injustice;  the  malice  of  the  wrong-doer,  the  injury  to  the  peace  and  dignity  of 
the  commonwealth,  are  as  great  when  the  animal  is  worth  nine  dollars  as  when  its 
value  is  ten;  in  one  case  the  culprit  may  be  iiunished  by  imprisonment  not  ex- 
ceeding three  months ;  in  the  other,  he  may  be  incarcerated  five  years. 

In  this  State  it  has  been  held  that  malice  against  the  owner  of  the  animal 
must  be  charged  and  proved.     (State  v.  "Wilcox,  3  Yerg.  278.) 

2  Laws  of  Texas,  Paschal' s  Digest,  p.  4C0,  Sec.  2:344.  Among  the  domestic 
animals  enumerated  is  the  dog,  which  is  not  generally  regarded  as  among  tlie 
domestic  animals  for  a  malicious  injury  to  which  a  criminal  action,  under  sim- 
ilar statutes,  Avill  lie. 

3  General  Statutes  of  Vermont,  p.  (ul,  Sec.  26. 

*  Statutes  of  Wisconsin,  Taylor,  p.  1850,  Sec.  53. 


267  MALICIOUS    INJURY  TO    ANIMALS.  §  205 

§  205.  Construction  of  statutes  for  prevention  of  will- 
ful injury  of  animals. — Rules  to  be  deduced  from  the  de- 
cisions upon  these  statutes  by  the  Courts  of  the  several  States 
are  of  but  little  general  value,  from  the  diversity  j^resented  by 
the  laws  as  to  the  character  and  enormity  of  the  offense,  and 
the  measure  and  mode  of  punishment  provided.  It  is,  however, 
to  be  deduced  that  the  essence  of  the  offense  of  malicious  mis- 
chief, in  injuring  animals,  is  malice  toward  the  owner. 

To  constitute  malicious  mischief,  at  common  law,  in  injuring 
animals,  malice  toward  the  owner  is  essential.  Such  malice 
must  be  averred  and  proved.  It  will  not  be  inferred  from  a 
merely  injurious  act,  such  as  killing  the  animal  of  another. 

To  kill  an  animal  is  not  necessarily  an  offense,  but  is  only 
rendered  one  by  the  special  circumstances. 

This  general  rule  has  been  generally  adopted  in  the  several 
States  as  the  true  one,  in  construing  these  statutes.^ 

1  Commonwealth  v.  Brooks,  9  Gray,  303 ;  The  King  v.  Pearce,  1  Leach,  4th  Ed. 
527,  and  2  East,  P.  C.  1072;  Commonwealth  v.  Sowle,  9  Gray,  304.  But  an  indict- 
ment need  not  set  out  the  precise  means  used  to  commit  the  injury.  (Rex  v. 
Whitney,  1  Moody,  3;  Rex  v.  Briggs,  1  Moody,  318;  Commonwealth  v.  Smith,  2 
Allen,  516.) 

State  V.  Newby,  64  N.  H.  24.  An  ox  was  killed  in  winter,  when,  the  ground 
being  covered  with  snow,  and  no  ijossible  injury  to  crops  could  have  been  the 
motive  causing  his  death,  it  was  insisted  that  malice  must  be  presumed.  The 
Court  did  not  so  regard  it,  and  decided  that,  "in  the  spoliation  or  destruction 
of  proi^erty,  malice  toward  the  owner  must  be  the  indiicement,  in  order  to  con- 
stitute the  crime  of  malicious  mischief  at  the  common  law. 

"  Tliis  was  not  controverted  by  the  attorney-general,  but  he  insisted  that  the 
fact  of  the  killing  the  ox  being  found,  malice  must  be  inferred,  just  as  in  homicide. 
The  difference  is  that  homicide  is  a  crime,  pe?'  se,  and  excuse  or  justilication  must 
come  from  the  defense,  or  appear  in  the  cause ;  but  to  kill  an  ox  is  not  so,  and, 
therefore,  malice  toward  the  owner  must  be  found.  It  was  not  found  in  this 
case,  and  the  defendant  was  entitled  to  an  acquittal." 

State  V.  Jackson,  12  Ire.  329;  State  v.  Latham,  13  Ire.  33;  Northcote  v.  State,  43 
Ala.  334.  "Malice  is  the  gravamen  of  this  offense,  and  it  must  be  malice  to  the 
owner.  If  the  injury  was  inflicted  without  any  malice  to  the  owner,  it  is  a 
mere  trespass,  and  not  malicious  mischief."  (Johnson  r.  State,  37  Ala.  457; 
Pierce  v.  State,  7  Ala.  728. ) 

The  converse  of  this  proposition  is  held  in  Wallace  v.  The  State,  (30  Tex.  75Sj 
in  which  it  was  held  that  it  was  not  necessary  to  prove  malice  on  the  part  of 
the  accused ;  that  it  was  enough  to  show  that  the  act  was  willfully  done ;  that, 
"in  contemplation  of  the  penal  law,  the  loiUful  killinfj  of  the  hogs,  with  this 
intent,  loas  the  gravamen  of  the  charge,  and  in  that  act  the  offense  was  complete 
against  society."    (P.  759.) 

An  examination  of  the  law  of  Texas,  however,  shows  that  statute  to  differ 
materially  from  those  of  the  other  States.  The  language  of  this  act  is  that  he  who 
shall  loillfully  maim,  kill,  etc. ;  the  language,  generally,  of  tlie  statutes  is  toill- 
fully  and  maliciously. 


§§  206-7  MALICIOUS    INJURY  TO    ANIMALS.  268 

§  206.  The  definition  of  malice,  at  criminal  law,  is  the 
doing  a  wrongful  act  intentionally,  without  just  cause  or  ex- 
cuse ;  ^  but,  in  this  class  of  action,  the  general  definition  does 
not  strictly  apply.  The  word  "  malicious  "  is  not,  in  j^rosecu- 
tious  for  malicious  mischief,  sufficiently  defined  as  the  willful 
doing  of  any  act  prohibited  by  law,  and  for  which  the  defend- 
ant has  no  lawful  excuse.  In  order  to  convict,  the  jury  must 
be  satisfied  that  the  injury  was  done  either  out  of  a  spirit  of 
wanton  cruelty,  or  of  wicked  revenge.^  But  the  proof  of  mal- 
ice being  necessarily  from  circumstantial  evidence — for  the  hu- 
man heart  is  open  to  no  man — it  is  the  province  of  the  jury  to 
regard  all  the  circumstances,  and  from  them  deduce  whether 
or  not  the  injury  was  done  to  the  animal  out  of  malice  to  the 
owner. 

In  doing  so,  they  may  regard  previous  threats,  old  grudges, 
or  circumstances  denoting  ill  will  to  him  v/hose  animals  have 
been  injured ;  and  malice  may  be  inferred  where  the  conduct  of 
the  accused,  in  injuring  the  beasts,  will  admit  of  no  other  inter- 
pretation than  that  he  acted  out  of  spite  to  the  owner.^ 

§  207.  As  to  -what  constitutes  injury  to  animals,  under 
the  statutes  against  malicious  injuries,  much  ingenuity  has  been 
manifested  by  those  who  would  wreak  their  spite  against  the 
owner  upon  his  unoffending  beasts.  The  most  common  has 
been  to  cut  off  the  manes  or  shave  the  tails  of  horses,  and 
then,  if  detected,  to  take  shelter  under  the  j^roposition  that 
such  an  act  does  not  injure  the  animal ;  that  such  is  not  an  in- 
jury ;  that  it  can  at  most  be  harmful  only  to  the  taste,  concep- 
tion of  beauty,  or  feelings  of  the  owner  or  others.  But  the 
Courts  have  not  permitted  that  evasion  of  the  law,  and  have 
held  that  the  disfigurement  of  animals,  so  that  their  value  as 
merchandise  is  diminished,  is  within  the  statutes  "  to  j^rovide 
for  the  punishment  of  the  crime  of  maliciously  killing  and  in- 
juring horses  and  other  animals."  * 

1  Maynartl  v.  F.  F.  Ins.  Co.  34  Cal.  48;  Boiivier's  Law  Die.  Vol.  1,  91. 

2  Bouv.  Law  Die.  Vol.  1,  p.  02,  "  Malieious  Mischief  " ;  Jacob's  Law  Die.  "Mis- 
chief, Malicious  " ;  Allison  Scotch  Law,  448. 

3  Ph.  on  Ev.  marginal  page  572. 

4  Oviatt  V.  The  State,  19  Ohio  St.  11.  570;  Boyd  v.  The  State,  2  Humph.  39. 


269  FENCES.  §§  208-9 


CHAPTER  XIX. 

FENCES. 

§  208.  The  use  of  fences  to  protect  crops. 

§  209.  Common-law  rule :  he  who  keeps  cattle  must  fence. 

§  210.  The  value  of  this  rule  in  the  United  States. 

§  211.  In  some  of  the  States  this  rule  never  obtained. 

§  212.  The  common  law,  how  far  adopted  in  America. 

§  213.  No  general  rule  as  to  fencing  in  the  United  States. 

§  214.  Statutes  of  several  of  the  States  as  to  fencing. 

§  215.  State  laws  as  to  fencing  against  stock. 

§  21G.  Prescription  to  fence  at  conunon  law. 

§  208.  The  use  of  fences  to  protect  crops. — In  natural 
sequence  to  consideration  of  the  laws  which  control,  and  legal 
principles  which  apply  to,  the  business  of  raising  and  keeping 
domestic  animals,  comes  an  examination  of  the  laws  in  relation 
to  fences,  to  determine  the  relative  position  of  the  parties  who 
keep  live-stock,  and  those  who  raise  crops. 

While  fences  have  a  manifest  value  as  boundaries  and  land- 
marks, it  is  clear  that  the  chief  function  of  that  important  fea- 
ture of  the  farm  is  to  protect  crops  from  the  ravages  of  do- 
mestic animals. 

From  the  circumstance  that  the  business  of  agriculture  is 
necessarily  carried  on  in  the  same  vicinity  with  that  of  keeping 
live-stock,  it  has  resulted  that  much  litigation  has  been  had  be- 
tween the  parties  engaged  in  these  two  callings,  because  of  the 
propensity  of  animals  to  trespass  upon  crops  ;  and  special  legis- 
lation has  been  frequently  resorted  to  for  the  j^urpose  of  estab- 
lishing and  maintaining  in  due  legal  relation  these  two  lines  of 
business,  and  to  harmonize  the  rights  of  the  farmer  to  raise 
crops,  and  the  stock-raiser  to  keep  animals. 

§  209.  Common-law  rule :  one  who  keeps  cattle  must 
fence  them  in ;  he  who  raises  crops  need  not  fence  them 
out. — The  use  of  fences,  under  the  rule  of  the  common  law,  is  to 


§  210  FENCES.  270 

keep  the  owner's  cattle  in,  rather  than  for  the  farmer  to  keep  out 
of  his  inclosure  the  cattle  which  belong  to  other  persons ;  it  is  a 
general  rule  of  the  common  law  that  the  owner  of  cattle  is 
bound,  at  his  peril,  to  keep  them  off  the  land  of  others,  and  he 
cannot  justify  a  trespass  which  his  animals  have  committed,  by 
showing  that  the  land  was  not  fenced ;  the  OAvner  of  animals 
must  fence  them  in,  and  he  who  tills  the  soil  need  not  fence 
them  out. 

Under  the  common-law,  the  owner  of  cattle,  if  not  absolutely 
obliged  to  fence  his  land,  was  nevertheless  bound,  nt  his  peril, 
to  keep  his  cattle  on  his  own  grounds,  and  prevent  them  from 
escaping ;  the  legal  obligation  of  the  occupants  of  adjoining 
lands  to  make  and  maintain  partition  fences,  where  no  prescrip- 
tion exists  and  no  agreement  has  been  made,  rests  entirely  on 
provisions  by  statute.^ 

§  210.  The  value  of  the  common-law  rule  in  the 
United  States,^  even  where  the  respective  statute  laws  are 
silent  upon  the  topic,  has  not  been  conceded  universally,  or 
without  controversy  so  earnest  as  to  leave  serious  doubts  upon 
the  subject.  In  the  leading  case  of  Rust  v.  Low,  (Ante)  it  was 
urged,  in  argument,  that  the  condition  of  things  in  the  colonies 
was  so  different  from  that  in  the  mother  country  that  the  rule 

1  3  Kent's  Com.  Sec.  438;  Thayer  v.  Arnold  et  al.  2  Mete.  589;  Miner  v.  Deland, 
18  Pick.  266;  Lyman  v.  Gipson,  Ibid,  422;  Wells  v.  Howell,  19  Johns.  384;  Sturte- 
vant  V.  Merrill,  33  Maine,  62;  "Webber  v.  Classon,  35  Maine,  26;  Bradbury  v. 
Gilford,  53  Maine,  99;  Lyon  v.  Myrick,  105  Mass.  75;  Richardson  v.  "Wilburn,  11 
Md.  340;  Tonawanda  E.  E..  Co.  v.  Munzer,  5  Denio,  259.  "  Every  unwarrantable 
entry,  by  a  person  or  his  cattle,  on  the  land  of  another,  is  a  trespass,  whether 
the  land  be  inclosed  or  not  It  is  a  general  rule  of  the  common  law  that  the 
owner  of  cattle  is  bound,  at  his  peril,  to  keep  them  off  the  lands  of  other  per- 
sons, and  he  cannot  justify  or  excuse  such  an  entry  by  showing  that  the  land 
was  unfenced.  Fences  were  designed  to  keep  one's  cattle  at  home,  and  not  to 
guard  against  the  intrusion  of  tliose  belonging  to  other  persons. 

There  may  be  exceptions  to  the  rule  stated,  growing  out  of  a  necessity,  all 
but  irresistible,  in  particiilar  exigencies;  as  where  cattle  driven  along  a  highway 
stray  from  it,  in  sight  of  the  x^erson  in  charge  of  them,  and  pass,  against  his 
will,  on  to  uninclosed  ground  adjoining  the  highway,  he  making  fresh  suit  to 
bring  them  back ;  for,  in  such  case,  the  owner  ought  not  to  be  chargeable  for 
this  involuntary  trespass  on  the  land,  nor  for  the  herbage  the  cattle  may  crop." 

This  case  fairly  i^resents  the  general  rule,  and  it  is  perfectly  well  settled  and 
understood  that  the  owner  of  the  beasts  must  fence  them  in,  and  is  resiionsible 
for  tresi^asses  by  his  animals  committed  on  the  lands  of  another,  whether  such 
lands  are  fenced  or  not.  (Rust  v.  Low,  6  Mass.  94;  Little  v.  Lathrop,  5  Greenl, 
356;  Bush  v.  Brainard,  1  Cow.  78;  HoUaday  v.  Marsh,  3  Wend.  142.) 


271  FENCES.  §  211 

should  not  apply ;  that,  in  England,  the  lands  have  generally 
been  so  long  inclosed  as,  by  prescription,  to  furnish  a  mitigation 
of  the  rule  which  could  not  occur  in  a  new  country ;  that  the 
necessity  of  protecting  growing  crops  from  the  depredations  of 
wild  animals  required  the  cultivated  lands  to  be  inclosed  by 
fences,  and  the  very  small  proportion  of  the  lands  which  were 
devoted  to  agricultural  pursuits  made  it  more  fair  that  the  cul- 
tivator of  the  soil  should  protect  his  crop,  than  that  he  who  kept 
stock  should  be  forced  to  do  so.^  The  Court,  however,  refused 
to  entertain  this  view,  and  held  that  the  common-law  rule  ap- 
plied. In  Lord  v.  Wormwood,  29  Me.  282,  these  views  were 
presented  ably  in  argument ;  but  the  Court  felt  bound  to  follow 
Rust  V.  Low,  and  decided  in  the  same  way,  sustaining  the  com- 
mon-law rule  that  the  owner  of  live-stock  must  fence  his  ani- 
mals in. 

§  211.  In  some  of  the  States,  this  rule  never  took 
effect. — Li  some  of  the  United  States,  it  has  been  successfully 
contended  that  this  common-law  rule  does  not,  and  never  did, 
apply  to  them ;  that  the  American  common  law,  founded  upon 
decisions  recognizing  the  customs  which  had  resulted  from  a 
condition  of  things  radically  different  from  those  which  existed 
in  the  mother  country,  had  established  a  converse  of  the  rule 
that  the  owner  of  domestic  animals  must  fence  them  in ;  that 
the  common  law  of  England  was  only  adopted  so  far  as  it  was 
applicable  to  the  new  State,  and  that  this  rule  was  not  appli- 
cable, because  it  was  based  upon  the  condition  of  the  country 
England,  which  differed  so  greatly  from  that  in  America  as  to 

1  This  reasoning  not  only  appears  sonnd,  but  was  recognized  as  correct  by 
colonial  enactment  as  early  as  1642,  when  it  was  ordained  that  no  man  should  be 
liable  to  satisfy  for  damage  done  by  his  animals  in  any  grounds  not  suiBciently 
fenced.  (Genl.  Laws  and  Liberties  of  tlie  Mass.  Colony,  p.  20.)  And,  in  1662, 
it  was  enacted  that  where  any  cattle  should  trespass  on  any  property  not  suffi- 
ciently fenced,  in  the  opinion  of  the  fence- viewers,  the  owner  of  the  land  shoidd 
suffer  the  loss.  There  appears  upon  these  ordinances  to  have  grown  up  a  usage 
or  common  law  of  the  colony,  which  was,  to  some  extent,  recognized  by  the  pro- 
vincial acts  of  6  W.  &  M.  Chap.  11,  and  10  W.  Ill,  Chap.  4,  and  also  by  the  statute 
of  the  Commonwealth,  1788,  Chap.  Go,  Sec.  3.  By  these  ordinances  and  statutes,  it 
was  enacted  that  any  person  injured  in  his  mowing,  tillage,  or  other  lands  under 
improvement  that  are  inclosed  by  a  lawful  fence,  may  have  an  action  for  trespass. 
The  inference  is  natural  that,  not  having  his  land  so  inclosed,  he  could  not  have 
his  action.  But  the  Court  ruled  otherwise,  and  insisted  on  a  rigid  application  of 
the  original  common-law  rule,  and  held  that  the  colonial  ordinances  were  re- 
pealed by  the  adoption,  by  the  State  of  Massachusetts,  of  the  common  law. 


§  211  FExcES.  272 

render  it  inapplicable ;  tliat  as  far  back  in  the  past  as  tlie  rule 
itself  can  be  traced,  land  in  England  was  inclosed  wherever 
cultivated;  that  inclosed  tracts,  or  fields,  were  the  rule,  and 
open  lands  the  exception,  and  prescription  gave  such  universal 
exception  to  the  rule  as  to  be  a  rule  by  itself ;  wliile  in  America, 
the  oj^iposite  condition  of  things  existed ;  the  country  was  a  wil- 
derness, small  patches  of  which  were  reclaimed  and  put  into 
cultivation,  for  which  protection  from  wild  animals  was  often 
necessary ;  and,  from  the  beginning  of  a  settlement,  it  was  a 
recognized  necessity  that  he  who  cultivated  lands  must  protect 
his  crops  from  trespass  by  proper  fences.^ 

1  Kerwhacke.r  v.  C.  C.  &  C.  E.  R.  3  Ohio  St.  179.  The  Court  held  that  the  com- 
mon-law rule  never  obtained,  saying :  ' '  The  common  understanding  upon  which 
the  people  of  this  State  have  acted,  since  its  first  settlement,  has  been  that  the 
owner  of  land  was  obliged  to  inclose  it,  with  a  view  to  its  cultivation ;  that 
without  a  la\vful  fence  he  could  not,  as  a  general  thing,  maintain  an  action  for 
trespass  thereon  by  the  cattle  of  his  neighbor,  running  at  large,  and  that  to  leave 
unciiltivated  lands  uninclosed  Avas  an  implied  license  to  cattle  and  other  stock 
at  large  to  traverse  and  graze  them.  Not  only,  therefore,  was  tliis  common-law 
rule  inapi^licable  to  the  circumstances  and  condition  of  the  people  of  this  State, 
but  inconsistent  with  the  habits,  the  interests,  and  understanding  of  the 
people." 

Studwell  V.  Rich,  14  Conn.  295,  decides,  also,  that  the  common-law  rule,  that 
he  who  keeps  animals  must  guard  them  from  trespassing  ui:)on  the  lands  of 
other  persons,  whether  such  lands  are  inclosed  by  fences  or  not,  never  applied 
to  Connecticut. 

Barnham  v.  Van  Dvisan,  16  Conn.  200;  Commerford  v.  Duprez,  17  Cal.  .308; 
Waters  v.  Moss,  12  Cal.  535;  Logan  v.  Gedney,  38  Cal.  581.  "The  rule  of  the 
common  law  of  England,  that  every  man  is  bound  to  keep  his  beasts  within  iiis 
own  close,  under  the  i^enalty  of  answering  in  damages  for  all  injuries  resulting 
from  their  being  jiermitted  to  range  at  large,  never  was  the  law  in  California." 

In  Iowa,  the  decisions  are  to  tlie  same  effect,  and  thereby  it  is  now  established 
that  tlie  common-law  rule  is  not  the  law  in  that  State;  that  where  there  exists 
no  relation  between  the  parties,  by  which  they  are  bound  to  maintain  division 
fences,  the  cultivator  of  the  soil  must  fence  his  land  against  stock.  (Henry  v. 
Dubuque,  2  Iowa,  288;  Kennedy  v.  Same,  Ibid,  521;  Herrold  v.  Myers,  20  Iowa, 
378.) 

In  Kansas,  the  rule  is  not  in  force.  "The  act  in  relation  to  fences,  passed  in 
1868,  declares  what  shall  constitute  a  legal  and  sufScient  fence,  and  requires  all 
fields  and  inclosures  to  be  inclosed  tlierewith ;  and  said  act  so  far  modifies  the 
common  law  that  no  action  will  lie  for  injuries  done  on  real  estate  by  trespass- 
ing cattle,  unless  such  real  estate  is  inclosed  with  a  sufficient  fence."  (Darling 
V.  Rogers,  7  Kansas,  592. ) 

In  Pennsylvania,  the  decisions  are  that  the  common-law  rule  never  obtained 
in  t3iat  State,  or  that,  if  it  ever  did  at  all,  it  was  abrogated  by  Statute  of  1795. 
(Purden's  Digest,  by  Brightly,  1700-1870,  p.  475.) 

Adams  r.  McKiuney,  Addison,  258.  "In  England,  the  law  is  to  fence  round 
every  man's  ground,  and  trespass  may  be  maintained  for  i:)assing  over  the  unin- 
closed ground  of  another  against  his  will.    There,  as  has  been  stated,  the  prin- 


273  FENCES.  §  212 

§  212.   The  common  law,  how  far  adopted  in  America. 

— The  common  law  is  the  basis  of  our  jurisprudence  only  so  far 
as  it  is  applicable  to  the  condition  of  society  in  the  State  by 
which  it  is  adopted ;  and  the  general  understanding  of  how  far 
its  adoption  binds  the  State  to  its  provisions  is  that  circumstances 
affecting  the  new  country,  when  they  are  of  a  general  charac- 
ter, qualify  the  common  law  to  the  extent  even  of  discardino- 
its  provisions,  when  they  come  in  direct  conflict  Avith  the  mani- 
fest necessities  of  the  people,  at  the  time  of  its  adoption. 

If  it  be  conceded  that  where  an  American  common  law  has 
obtained  by  decisions  in  the  Courts  of  last  resort  in  the  several 
United  States,  it  should  furnish  apppropriate  rules ;  that  the 
common  law  of  England  is  only  in  force  so  far  as  it  is  in  har- 
mony with  the  institutions,  customs  of  the  people,  and  prin- 
ciples which  characterize  the  laws  of  the  respective  States ;  and 
that  the  rule,  as  established  by  the  Amei-ican  cases,  ought  to 
govern  where  there  have  been  decisions  in  the  Courts  of  the 
several  States  adverse  to  those  of  the  English  Courts — still,  it 
remains  difficult,  from  the  American  cases,  to  deduce  an  invari- 
able rule  as  to  the  applicability  of  this  common-law  rule,  that 
the  owner  of  animals  must  keep  them  inclosed. 

There  is  not  only  a  lack  of  harmony  among  the  Courts  of  all 
the  States  upon  the  proposition,  but  in  the  instance  of  one,  at 
least,  the  decisions  of  the  Courts  of  last  resort  in  the  same 
State  are  at  variance  one  with  another.^    In  some  of  the  States, 

ciple  sic  tdere  tuo  ut  aliens  non  ladas,  every  man  must  take  care  to  keep  liis  cattle 
from  going  on  the  lands  of  another.  In  this  country,  our  circumstances  have 
led  us  to  suppose  that  every  man  must  take  care  of  his  land,  that  the  cattle  of 
others  go  not  on  it."     (Milligan  v.  "SVehiuger,  08  Penn.  St.  35. ) 

In  Powell  V.  Sims,  5  "West  Virginia,  1,  it  was  held  that  the  common  law  of 
England  is  in  force  in  that  State  only  so  far  as  it  is  in  harmony  with  its  insti- 
tutions, and  its  principles  are  applicable  to  the  state  of  the  country  and  the 
condition  of  society;  and  that  the  rule,  as  established  by  the  American  cases, 
ou^it  to  govern  where  there  have  been  decisions  in  the  Courts  of  the  several 
States,  adverse  to  those  of  the  English  Courts. 

1  In  Illinois,  there  appears  to  be  some  conflict  of  decisions  as  to  the  apiilicabil- 
ity  of  the  common-law  rule.  In  the  earlier  cases,  it  was  held  that  this  rule  of 
the  common  law,  requiring  the  owner  of  hogs,  cattle,  etc.,  to  keep  them  vipon 
his  ovra  land  by  sufficient  fences,  had  never  been  in  force  in  Illinois,  and  that, 
in  order  to  maintain  trespass  for  injuries  to  crops  by  animals  on  one's  close,  the 
owner  of  the  close  must  have  it  surroi;nded  by  a  good  and  sufficient  fence. 
Seely  r.  Peters,  5  Gilm.  130;  Misner  v.  Lighthall,  13  111.  C09;  Header  v.  Ptust,  39 
El,  186;  Stoner  v.  Stoner,  45  111.  76;  McCormick  v.  Tate,  20  111.  334:  C.  B.  &  Q.  R. 

Farm— 18. 


§  212  PENCES.  274 

as  above  seen,  it  Is  held  that  the  common-law  rnle  was  never  in 
force,  was  antagonistic  in  principle  to  the  established  usages, 
and  generally  inapplicable ;  that  statute  enactments,  imposing 
responsibility  and  providing  penalties  to  be  imposed  upon  the 
owners  of  animals  which  trespass  upon  lands  protected  by  legal 
fences,  necessarily  put  upon  the  tiller  of  the  soil  the  duty  of 
fencing  his  lands,  before  he  could  either  prosecute,  or,  in  civil 
action,  recover  damages  against  the  owner  of  trespassing  ani- 
mals. On  the  other  hand,  the  Courts  of  other  States  have  de- 
cided these  statutory  provisions  to  be  declaratory  only  of  the 
common-law  rule,  giving  cumulative  remedies,  and  that,  how- 
ever full  is  the  remedy  given  by  the  statute  law  for  trespasses 
by  animpJs,  the  owner  of  the  land  trespassed  upon,  or  of  the 
crop  injured  by  them,  is  not  obliged  to  rely  on  the  laws  of  the 
State,  but  may  also  look  to  his  common-law  remedy,  under  the 
rule  that  he' who  keeps  stock  must  answer  for  their  trespasses 
on  the  lands  of  another,  whether  such  lands  are  or  are  not  in- 
closed by  lawful  fences.^ 

E,.  Co.  V.  Cauffman,  38  111.  429;  Seely  v.  Peters,  5  Gilm.  130,  were  cited  approv- 
ingly, and  it  was  held  that  the  common-law  rule,  which  required  individuals  to 
fence  in  their  cattle,  had  never  obtained  in  that  State;  that  "to  maintain  tres- 
pass for  damage  done  hy  stock,  the  owner  of  the  close  must  have  it  surrounded 
by  a  good  and  sufficient  fence." 

But,  in  McBride  v.  Lynd,  55  111.  441,  which  was  an  action  of  damages  for  tres- 
pass by  hogs  which  got  into  plaintiff's  field  tlirough  a  defective  fence,  it  was 
held  that  "the  fence  dividing  the  fields  was  not  a  partition  fence  under  the  stat- 
ute. Hence,  the  condition  or  sufficiency  of  the  fence  is  not  involved.  Under 
such  circumstances,  appellant  was  boimd  to  secure  his  hogs,  in  his  own  field,  at 
his  peril.  The  rule  of  the  common  law  j^revails  in  siich  cases,  that  each  man  is 
bound  to  take  care  of  and  keep  his  cattle  on  his  own  land." 

1  "At  common  law,  a  man  was  not  bound  to  fence  his  lands  against  stock; 
but  the  owner  of  beasts  was  obliged  to  restrain  them  at  his  peril.  Our  statutes 
in  relation  to  division  fences  have,  in  some  respects,  restricted  this  liability ;  but 
they  do  not  deprive  the  owner  of  lands  of  an  action  of  trespass  for  injuries  done 
by  cattle.  He  is  not  confined  to  the  remedy  of  appraisal  by  f  ence-A'iewers,  pro- 
vided by  statute."  (HoUaday  v.  Marsh,  3  Wend.  142;  Stafford  v.  Ingerso^  3 
Hill,  38;  Wells  v.  Howell,  19  Johns.  385;  Ryan  v.  R.  &  S.  R.  R.  Co.  9  How.  Pr. 
R.  453.) 

"  Cattle,  by  nature,  are  wont  to  stray  abroad.  By  the  common  law,  the  owner 
of  them  is  bound  to  keep  them  from  straying  into  the  possession  of  others.  If 
he  fails  to  do  so,  and  they  do  damage  in  tlnis  straying,  the  injury  is  liis  trespass. 
The  statutes  in  respect  to  fences  between  occupied  lands  do  not  relieve  the 
owners  of  cattle  from  this  common-law  duty."  (Keenan  v.  Cavanaugli,  44  Vt. 
2G8;  and  to  the  same  point.  Rust  v.  Lowe,  Ante,  Sec.  209;  Binney?\  Hall,  5  Pick. 
503-  Thayer  v.  Arnold,  4  Met.  589;  Lord  v.  Wormwood,  29  Me.  282;  Sturtevant 
V.  Merrill,  32  Me.  62;  Webber  v.  Clossen,  35  Me.  26;  Perkins  v.  Eastern  R.  R.  Co. 


275  FEN^CES.  §§  213-14 

§  213.  No  general  rule  as  to  fencing  in  stock. — From 
the  manifest  impossibility  of  harmonizing  these  two  proposi- 
tions, that  the  common-hxw  rule  never  was  applicable,  and  had 
no  force  in  the  States  where  that  doctrine  has  become  stare  de- 
cisis^ and  the  converse,  that  the  common-law  rule  is  the  law  of 
the  land,  and  the  laws  of  the  State  upon  the  subject  are  but 
declaratory  thereof,  or  give  only  cumulative  remedies,  as  has 
been  decided  in  other  of  the  States,  it  results  that  the  status 
of  each  State  must  be  ascertained  by  regarding  alone  the  ridings 
of  its  Court  of  last  resort,  where  the  matter  has  been  clearly 
adjudicated. 

§  214.   Statutes  of  several  of  the  States  as  to  fencing. 

— ^In  the  class  of  States  where  the  common-law  rule  does  not 
apply  should  be  ranked  California,^  Connecticut,^  lowa,^  Kan- 
sas,^ Pennsylvania ;  ^  in  the  second  class,  Massachusetts,*^  Maine," 
Vermont.^ 

In  certain  of  the  other  States,  direct  statutory  enactments  ex- 
ist, which  are  so  far  antagonistic  to  the  common-law  rule  as 
necessarily  to  supersede  it ;  thus,  in  Alabama,  the  law  on  the 
statute  book  reads :  "  If  any  trespass  or  damage  is  done  by  any 
animal  breaking  into  lands  not  inclosed  by  lawful  fence,  the 
owner  is  not  liable  therefor."  ^  Similar  provisions  appear  in  the 
statutes    of    Georgia,^*'    Indiana,^^    Michigan,^   New    Jersey,^^ 

29  ]Me.  307;  Knox  v.  Tucker,  48  Me.  373;  Bradbury  v.  Gilford,  53  Me.  99;  James 
V.  Tilibetts,  GO  Me.  557.) 

iCommerford  v.  Duprey,  17  Cal.  308;  Logan  v.  Gedney,  38  Cal.  581;  T^aters 
V.  Moss,  12  Cal.  535. 

2  Stud  well  r.  Rich,  14  Conn.  295;  Wright  v.  Wright,  21  Conn.  329. 

3  Henry  v.  Dubvique,  2  Iowa,  288;  Kennedy  v.  Same,  Djid,  521 ;  Herrold  ?•.  My- 
ers, 20  Iowa,  378. 

4  Darling  v.  Rogers,  7  Kansas,  592 ;  Larkin  v.  Taylor,  5  Kansas,  433. 

5  Adams  v.  McKinny,  Addison,  258;  ]\rilligan  v.  "VVehinger,  68  Penn.  St.  235. 

6  Rust  V.  Low,  6  Mass.  94;  Binney  v.  Hull,  5  Pick.  503;  Thayer  v.  Arnold,  4  Met. 
589. 

'  Lord  V.  Wormouth,  29  Me.  282;  Sturtevant  v.  Merrill,  32  Ma.  62;  Webber  v. 
Clossen,  35  Me.  26;  Perkins  v.  E.  R.  R.  Co.  29  Me.  307;  Knoxw.  Tucker,  48  Me.  373; 
James  v.  Tibbetts,  60  Me.  557. 

8  Keen  an  v.  Cavanaugh,  44  Vermont,  268. 

9  Revised  Code  of  Alabama,  1867,  p.  282,  Sees.  1282,  1283. 
w  Code  of  Georgia,  by  Irwin,  Lester  &  Hill,  1873,  p.  244. 

11  Stats,  of  Indiana,  Gavin  &  Hord,  Vol.  1,  p.  342. 

12  Laws  of  Mich.  1861,  p.  294;  Compiled  Laws,  1871,  pp.  300,  301. 

13  Laws  of  New  Jersey,  Nixson's  Dig.  4th  Ed.  p.  333,  Sec.  10. 


§  215  TENCES.  2T6 

Texas,^  and  Tennessee.^  In  Minnesota,  the  statute  law  is  pe- 
culiar ;  a  lawful  fence  is  defined,  and  a  provision  is  made  that 
"  no  damage  shall  be  recovered  by  the  owner  of  any  lands  for 
damage  committed  thereon  by  any  beasts  during  the  day-time, 
unless  it  shall  be  proven  that  the  lands  were  protected,  on  the 
side  where  the  breach  or  entry  was  made,  by  a  laAvful  fence ; 
but  for  all  damage  done  in  the  night-time  he  may  distrain  and 
have  damao;es."^ 

§  215.   State  laws  as  to  fencing  against  stock. — By  the 

statutes  of  New  York,  occupants  of  adjoining  lands  are  com- 
pelled to  maintain  division  fences ;  and  although  there  are  no 
provisions  directly  providing  that  crops  must  be  protected  by 
lawful  fences,  the  practical  effect  is  much  the  same  as  though 
there  were.* 

Such  appears  to  be  the  application  of  the  common-law  rule, 
as  affected  by  statutory  enactments,  deducible  from  the  de- 
cisions of  the  Courts,  although  from  the  earlier  decisions  it 
appears  that,  however  plenary  is  the  statute  law  in  provisions 
protective  of  crops  from  trespass  by  animals,  the  injured  party 
is  not  forced  to  rely  on  them,  but  may  look  also  to  his  common- 
law  remedy.^ 

In  North  Carolina,  the  general  statute  law  is  such  that  "•  every 
planter  shall  make  a  sufficient  fence  about  his  cleared  land 
under  cultivation."  If  his  land  is  so  protected,  he  may  recover 
for  damages  done  by  trespassing  animals  ;  otherwise,  not.^ 

In  March,  1871,  this  general  law  was  so  modified,  as  to  cer- 
tain portions  of  the  State,  that  the  question  of  "  fence  law  "  or 
"  no-fence  law "  was  left  to  be  determined  by  the  people 
through  the  local  elections ;  so  that  if  the  majority  of  the 
votes  cast  was  in  favor  of  "  no-fence  law,"  the  owner  of  cattle 
was  mulct  in  damages  for  injury  committed  by  his  animals, 
whether  the  land  was  fenced  or  not.^ 

1  Paschal's  Dig.  639,  Sec.  3338  et  seq. 

2  Gen.  Stats  of  Tenn.  Compilation  by  Thompson  &  Steger,  Sees.  lG82-lG8o. 

3  Stats,  at  I^arge,  ]Minu.  (Bissel)  1873,  p.  568. 

4  Revised  Statutes  of  New  York,  2cl  Ed.  326  et  seq. 

SHoUiday  v.  Marsh,  3  Wend.  142;  Stafford  v.  Ingersoll,  3  Hill,  38;  Wells  v. 
Howell,  19  Johns.  385;  Ryan  v.  R.  &  S.  R.  R.  Co.  9  How.  Pr.  R.  453. 
6  Revised  Code  of  North  Carolina,  1855,  p.  294,  Sec.  48. 
■^  Laws  of  North  Carolina,  1870-1,  p.  282. 


277  FENCES.  §  216 

The  general  law,  and  exceptions  therefrom  for  several  of  the 
counties,  is  the  same  in  Virginia.^ 

Similar  provisions  for  exemption  of  counties  from  the  gen- 
eral law,  by  submission  of  the  question  of  "fence  laAv"  or  "no- 
fence  law,"  appear  upon  the  statutes  of  Georgia^  and  Cali- 
fornia.^ 

§  216.  Prescription  to  fence  is  recognized  at  common 
la"W  as  residting  from  an  assumption  of  the  duty  of  fouciufi;, 
and  granting  to  the  occupant  of  the  adjoining  lands  the  jDriv- 
ilege  of  grazing  cattle  on  his  premises,  without  guarding  them 
against  trespassing  upon  the  lands  of  him  whose  estate  is 
charged  with  the  grant.  This  grant  is  presumed,  from  lapse  of 
time,  generally,  such  as  is  prescribed  by  the  Statute  of  Limita- 
tions as  to  real  property,  and  that  such  a  grant  has  actually 
been  made,  but  the  evidence  of  it  has  been  lost  by  the  lapse  of 
time ;  *  and  a  covenant  thus  once  established,  either  by  pre- 
scription or  by  grant  in  usvial  form,  runs  with  the  land,  binds 
the  original  covenantor,  and  all  who  hold  under  or  take  estate 
from  him ;  so,  where  the  agreement  as  to  fencing  varies  from 
the  duty  imposed  by  statute  as  to  division  fences,  the  agree- 
ment of  the  parties  supersedes,  as  to  them,  in  relation  to  the 
subject-matter,  the  statutory  provisions ;  their  agreement  be- 
comes a  covenant  which  thereafter  runs  with  the  land,  and  is  an 

1  Code  of  Virginia,  1860,  p.  492.  Acts  of  the  several  assemblies  have  estab- 
lished new,  or  altered  the  bounds  of  existing,  exceptional  districts,  wherein  tlie 
"  no-fence  rule  "  is  the  statute  law;  the  first  of  these  exceptions  is  indicated  in 
the  general  law  above  cited;  the  last  appears  in  the  "Acts  of  Assembly," 
1872-3,  p.  256. 

2  Code  of  Georgia,  1873,  Sec.  1455. 

3  Hittell's  Dig.  Vol.  2,  Sees.  7241,  7245,  et  seq.  It  should  be  observed  that  the 
adoption  of  the  Code  of  California  does  not  affect  the  pre-existing  acts  in  rela- 
tion to  lawful  fences,  estrays,  and  the  trespassing  of  animals  upon  private  i:)rop- 
erty,  as  such  laws  are  specially  kept  in  force  by  the  code.  (Political  Code  of 
California,  Sec.  18,  Subdivision  23. ) 

4  Eider  v.  Smith,  3  T.  R.  766;  Thayer  v.  Arnold,  4  Met.  589;  Hewlins  v.  Ship- 
man,  5  Barn.  &  Cres.  221;  Eust  v.  Low,  6  Mass.  E.  90,  in  which  Parsons,  C.  J., 
rendering  the  decision,  said  that  then  (more  than  sixty  years  ago)  ISIassachusetts 
"had  been  settled  long  enough  to  allow  of  the  time  necessary  to  i>rove  a  pre- 
scrijition,  and  ancient  assignments  by  fence-viewers,  made  under  the  late 
provincial  laws;  and  also,  ancient  agreements  made  by  the  parties  may  have 
once  existed,  and  be  now  lost  by  the  lapse  of  time." 


§  216  FENCES.  278 

incumbrance  within  the  meaning  of  a  covenant  to  convey  free 
of  all  incumbrances.^ 

An  obligation  to  maintain  in  repair  a  partition  fence  may 
also  exist  by  prescription.  In  the  leading  case  of  Eust  v.  Low, 
it  was  held  that  the  owner  of  the  cattle  doing  damage,  by  tres- 
pass on  his  neighbor's  land,  might  justify  by  showing  that  the 
party  complaining  was  bound  by  prescription  to  maintain  the 
fence,  and  that  he  might  prove  it  by  ancient  usage,  and  such  is 
the  doctrine  to  be  deduced  from  the  authorities  cited,  and  the 
older  English  cases ;  although  it  would  appear  that  the  j)i'escri23- 
tion  must  be  specially  pleaded.^ 

1  Boyle  V.  Tamlyn,  9  D.  &  R.  430;  6  B.  &  C.  329;  Blain  v.  Taylor,  19  Abb.  Pr.  E. 
228;  Bronson  v.  Coffin,  108  Mass.  175. 

2  Holbatch  v.  Warner,  Cro.  Jac.  G65 ;  Potter  v.  Parry,  7  "Weekly  Reporter,  182 ; 
Howell  V.  Salisbury,  2  Young  &  Jervis  R.  391.  "The  owners  of  adjacent  lands 
may  become  bound,  by  iirescrij^tion,  to  maintain  specific  portions  of  tlieir  par- 
tition fence."    (Harlow  v.  Stimson,  CO  Me.  347.) 


279  LAWFUL   FENCES.  §  217 


CHAPTER  XX. 

LAWFUL  FENCES. 

•     §  217.  States  may  prescriLe  wliat  shall  be  lawful  fences. 

§  218.  Statute  laws  control  as  to  partition  fences. 

§  219.  General  characteristics  of  fence  laws. 

§  220.  State  laws  as  to  what  shall  be  lawful  fences. 

§  221.  Fence  laws  in  certain  States. 

§  222,  State  laws  as  to  lawful  fences. 

§  223.  Lawful  fences  in  certain  States. 

§  224.  Pdvers  may  be  lawful  fences. 

§  225.  Fences  which  are  as  efficient  as  lawful  fences. 

§  226.  Obligation  of  coterminous  proprietor  as  to  fencing. 

§  227.  Owner  of  uninclosed  lands  need  not  join  in  fencing. 

§  228.  Division  fence  on  either  side  of  water-course. 

§  229.  Fence-viewers  and  their  duties. 

§  230.  Mode  of  acquiring  jurisdiction  by  fence-viewers 

§  231.  Award  of  fence-viewers  a  lien  on  land. 

§  232.  Fence-viewers  to  assess  damages  done  by  animals. 

§  217.  States  may  prescribe  what  shall  be  lawful 
fences. — The  right  to  use  one's  own  land  as  one  chooses,  with- 
out interference  by  the  law,  at  first  glance  appears  to  be  inher- 
ent to  the  ownership  of  real  property,  and  thence  reasoning,  it 
would  seem  that  the  fencing  of  one's  field  could  in  no  wise, 
under  our  system  of  laws,  be  enforced,  or  the  mode  of  inclosing 
land  dictated  to  its  owner.  Such  is  the  result  of  a  superficial 
view  of  the  subject ;  but  a  more  just  conclusion  is  arrived  at  by 
considering  that  no  citizen  has  enjoyment  of  property  other 
than  by  the  protection  of  the  law,  and  even  of  real  estate ;  his 
possession  is  only  maintained  by  submission  to  the  terms  upon 
which  such  protection  is  accorded  to  him.  Self-evident  as  these 
propositions  may  be,  so  late  as  1869  they  are  found  to  have 
been  controverted,  and  the  constitutionality  of  legal  enactments 
in  the  premises  has  been  seriously  contested.  The  result,  how- 
ever, has  been  that  it  may  be  regarded  as  settled  that  the  con- 
stitutional power  over  the  citizon  by  the  State  is  such  that  it 
may  prescribe  in  what  manner  he  may  use  his  land  to  the  ex- 


§§  218-19  LAWFUL    FENCES.  280 

tent  of  imposing  upon  him  the  burden  of  keeping  it  inclosed  in 
a  particular  manner,  before  he  can  claim  protection  under  the 
law  from  the  ravages  of  his  neighbor's  stock.  The  legislature 
may  make  such  laws  as  are  requisite  properly  to  define  the  rel- 
ative duties  of  the  parties  one  to  the  other.^ 

§  218.  Statute  la"ws  control  in  partition  fences. — From 
the  frequency  with  which  statutory  enactments  as  to  division 
fences  occur  in  the  laws  of  the  several  States,  it  would  appear 
that  the  fact  had  been  forgotton  that  the  common  law  of  En- 
gland had  been  adopted ;  naoreover,  as,  by  the  common  law,  the 
owner  of  cattle  must  fence  them  in,  and  between  lands  which 
are  exclusively  devoted  to  raising  crops  no  necessity  to  fence  oc- 
curs, it  appears  to  result  that  the  law,  as  it  now  stands,  as  to 
"  partition  "  or  "  division  "  fences,  is  to  a  very  great  extent  the 
creature  of,  and  has  its  existence  by,  the  statutes  of  the  several 
States.  At  all  events,  whether  these  statutes  are  to  be  regarded  as 
declaratory  of,  or  in  derogation  to,  the  common  law,  the  provisions 
are  so  precise  as  to  render  necessary  a  careful  consideration  of 
the  State  laws  to  determine  the  relative  duties  and  rights  of 
those  who  hold  adjoining  lands,  as  to  building  and  maintaining 
division  fences. 

§  219.  General  characteristics  of  fence  la"ws. — The  gen- 
eral provisions  of  the  statute  laws  of  the  several  States  are  sub- 
stantially the  same,  and  are  to  the  effect  that  where  two  or  more 
persons  have  farming  lands  adjoining,  each  of  them  is  required 
to  build  and  keep  in  repair  a  just  and  equal  proportion  of  the 
division  fence  between  them,  in  all  cases  where  their  lands  are 
in  such  a  condition  of  improvement,  reclamation,  or  devotion  to 
agricultural  pursuits,  as  necessarily  demands  that  they  shall  be 
fenced. 

1  Pliillipps  V.  Oystee,  32  Iowa,  257;  Jones  v.  Perry,  60  IST.  H.  134.  "The  legis- 
lature of  a  State  has  the  constitutional  power  to  regulate,  by  statute,  the  rela- 
tive rights  and  responsibilities  of  inclosed  land,  and  the  owners  of  stock  going  at 
large  or  kept  in  adjoining  inclosures."     (Wills  ?•.  "Walters,  5  Bush,  [Ky.]  351.) 

Hollister  v.  Hollister,  35  Conn.  241.  But,  although  legislatures,  by  enacting 
certain  fence  laws  and  statutes  regulating  the  running  at  large  of  stock,  have 
impliedly  declared  that  no  action  shall  lie  for  injiiries  done  to  real  estate  and 
crops,  by  running  cattle,  unless  svich  fence  be  made ;  it  should  not  be  considered 
that  the  law  will  permit  one  person  to  graze  his  stock  on  another's  land,  whether 


281  LxVWrUL   FENCES.  §§  220-1 

Notwithstanding  the  provisions  of  the  common-law  rule  and 
its  recognition,  it  is  a  fact  that  has  been  recognized  tacitly,  if 
not  openly,  that  no  cultivation  of  the  soil  can  be  safely  pursued 
as  employment  except  in  inclosed  fields,  and  the  building  and 
maintenance  of  division  fences  has  hence  become  an  important 
subject  of  legislation,  and  the  construction  and  application  of 
the  laws  in  relation  thereto  have  been  matters  interestino;  in  dis- 
cussion  and  important  as  to  decisions  by  the  Courts  of  the 
United  States. 

§  220.   State  laws  as  to  what  shall  be  lawful  fences. — 

Lawful  fences  are  prescribed  in  the  statutes  of  the  several 
States,  as  a  general  thing,  and  where  the  law  provides  that  a 
fence  shall  be  built  or  maintained,  it  is  to  be  presumed  that  a 
lawful  fence  is  intended,  where  the  express  agreement  of  the 
parties  is  not  to  the  contrary  ;  the  law  makes  an  agreement  for 
them,  but,  as  between  themselves,  they  may,  if  they  choose, 
vary  it.  Some  of  the  States  do  not,  in  terms,  prescribe  what 
shall  be  deemed  a  lawful  fence,  but  in  most  of  them  the  legisla- 
tive enactments  in  this  behalf  are  so  voluminous  as  to  preclude 
here  any  description  of  them  other  than  by  reference  to  the 
laws  themselves,  with  mention  of  their  chief  characteristics. 

§  221.  Fence  la^vs  in  certain  States. — In  Alabama,  all 
fences  must  be  five  feet  high,  and  strong  enough  to  turn  stock.^ 

Arkansas — The  sufficiency  of  any  fence  may  be  determined 
by  viewers  summoned  to  examine  it.^ 

California — A  fence  of  stone  four  and  a  half  feet  high,  and 
of  other  material  five  feet  high,  etc.^ 

Connecticut — A  rail  fence  four  and  a  half,  or  a  stone  wall 
four  feet  high.^ 

Delaware — Good  fence,  four  ami  a  half  feet  high,  of  wood, 
stone,  or  well-set  thorn  hedge  and  ditcli.^ 

it  is  fenced  or  not.  (Union  P.  R.  R.Co.  v.  Eollins,  5  Kan.  167;  Logan  v.  Gedney, 
38  Cal.  579;  Caulkins  v.  IMatliews,  5  Kan.  191;  Maltby  v.  Dihel,  5  Kan.  430.) 

1  Rev.  Code  Alabama,  1867,  Tit.  13,  Chap.  8. 

2  Rev.  Stats.  Arkansas,  Chap.  76;  Digest  of  1858,  Chap.  87. 

3  Genl.  Laws  of  California,  1864,  Sees.  3029,  3062. 

4  Rev.  Stats.  Connecticut,  1866,  Chap.  21,  Sec.  1. 

5  Rev.  Code  Delaware,  Chap.  57. 


§  222  LAWFUL    TENCES.  282 

Georgia — Worm  fences  or  ditches  must  be  five  feet  liis:li  or 
deep,  as  the  case  may  be,  and  other  fences  same  height.^ 

Illinois — Walls,  ditches,  or  fences  five  feet  high,  and  sufficient 
to  inclose  and  restrain  sheep.^ 

Indiana — Any  structure  in  the  nature  of  a  fence  which  is 
such  as  good  husbandmen  generally  keep,  and  shall,  on  the  tes- 
timony of  skillful  men,  appear  to  be  sufficient.^ 

Iowa — A  three-rail  or  board  fence,  with  posts  not  more  than 
ten  feet  apart  where  rails,  and  eight  feet  where  boards,  are  used, 
or  any  other  fence  which  in  the  opinion  of  the  fence-viewers  may 
be  deemed  equivalent  thercfto.^ 

Kansas — Post  and  boards  or  rails,  hedge,  ditch,  palisades, 
post  and  wire,  at  least  four  and  a  half  feet  high  and  sufficiently 
close,  or  stone  walls  at  least  four  feet  high.^ 

Kentucky — Every  strong,  sound  fence  five  feet  high,  and  close 
enough  to  restrain  stock,  or  a  stone  wall  four  and  a  half  feet 
high.^ 

§  222.  State  laws  as  to  lawful  fences. — Maine  and  Mas- 
sachusetts have  statutes  substantially  alike  as  to  what  shall  be 
lawful  fences,  viz.,  all  fences  four  feet  high,  of  rails,  boards, 
timber,  or  stone  walls,  in  good  repair,  and  sufficiently  close  to 
turn  stock,  or  such  other  fences  as  the  fence-viewers  deem 
equivalent.'' 

In  Michigan  and  Minnesota,  the  statute  is  the  same  as  in 
Maine,  except  that  the  standard  of  height  is  four  and  a  half 
feet.8 

In  Mississippi,  all  fences,  five  feet  high,  substantially  and 
closely  built  of  plank,  pickets,  or  other  good  material ;  or  hedges 
sufficiently  strong  and  close  to  exclude  domestic  animals  of  ordi- 
nary habits  and  disposition.^ 

1  Code  of  Georgia,  1873,  Chap.  9,  Sees.  1443-51. 

2  1  Gross.  Chap.  17,  Sees.  11-18;  Laws  1865,  Chap.  173. 

3  1  Rev.  Stats.  Indiana,  18(32,  Chap.  G2. 

4  Iowa  Code,  1873,  Tit.  11,  Chap.  4. 

5  Genl.  Stats.  Kansas,  1868,  Chap.  49,  Art.  1. 

6  Genl.  Stats.  Kentucky.  1873,  Chap.  55,  Art.  1. 

T  Eev.  Stats,  of  Maine,  Tit.  2,  GTiap.  22,  Sees.  1-4;  Genl.  Stats.  Mass.  Chap.  25, 
Sees.  1-2. 

8  Compiled  Laws  Mich.  1871,  Chap.  14;  Rev.  Stats.  Minn.  1866,  Chap.  18. 

9  Ilev.  Stats.  Mis.  1870,  Chap.  33,  Sees.  1905  et  seq. 


283  LAWFUL   FENCES.  S  222 


• 


Missouri — Fence,  sufficiently  close  to  restrain  domestic  ani- 
mals, five  feet  high,  of  posts  and  rails,  or  pallisades  ;  hedges,  or 
turf  or  worm  fence,  with  corners  locked  by  strong  rails,  posts, 
or  stakes.^ 

Nebraska — A  rail  fence,  six  rails  high,  post  and  rails,  or 
boards ;  three  rails  or  boards,  an  inch  thick,  and  at  least  five 
inches  wide,  or  post  and  four  wires — number  nine  wire — and 
all  at  least  five  and  a  half  feet  high  ;  or  the  fence  called  "  War- 
ner's Patent,"  four  and  a  half  feet  hijrh.^ 

New  Hampshire  has  a  law  similar  to  the  statute  of  Maine 
and  Massachusetts.^ 

In  New  Jersey,  all  fences  are  lawful,  which,  being  of  post 
and  rails,  timber,  boards,  brick,  or  stone  walls,  are  four  feet  two 
inches  high ;  and  all  other  fences  four  feet  and  six  inches  in 
height,  and  so  close  as  to  prevent  horses  and  neat  cattle  from 
going  through  or  under  the  same  ;  and  partition  fences  between 
improved  lands  must  be  close  and  low  enough  to  turn  sheep.* 

In  Rhode  Island,  a  hedge,  with  a  ditch  three  feet  deep;  a 
hedge,  without  a  ditch,  four  feet  high ;  a  stone  Avail,  four  feet 
high,  and  all  other  kinds  of  fences  four  and  a  half  feet  high,  in 
good  repair,  and  sufficiently  close.^ 

South  Carolina — All  fences  strongly  and  closely  made  of  rails, 
boards,  or  posts  and  rails,  or  an  embankment  of  earth  capped 
with  posts  and  rails,  or  line  hedges  five  feet  high.^ 

Tennessee — A  sufficient  fence,  five  feet  high,  and  so  close  from 
the  earth  as  to  prevent  the  passing  through  or  under  of  hogs." 

Texas — Substantially  the  same  as  Tennessee.^ 

Vermont  has  a  statute  similar  to  that  of  Maine,  except  that 
the  standard  of  height  is  four  and  a  half  feet.^ 

Virginia — Every  fence  five  feet  high,  Avell  built,  and  suffi- 

1 1  Wagner  Stats.  Chap.  71,  Sec.  1  et  seq. 

2  Genl.  Stats.  Nebraska,  1873,  Chap.  2,  Sees.  18-38. 

3  Genl.  Stats.  N.  H.  Chap.  128,  Sec.  5  et  seq. 

4  Nixon's  Dig.  4th  Ed.  331. 

5  Genl.  Stats.  R.  I.  1872,  Chap.  94. 

6  Stats,  at  Large,  S.  C.  Vol.  6,  No.  2340. 

T  Code  of  Tenn.   Amended,  1870-1,  Chap.   36,  Sec.   1  et  seq. ;  Code  of  1858, 
Chap.  3. 

8  Paschal' s  Dig.  639. 

9  Genl.  Stats.  Vt.  Chap.  102. 


§§   223-4  LAWFUL    FENCES.  284 

ciently  close  and   near   the   ground    to  restrain  horses,   cattle, 
sheep,  hogs,  and  goats.^ 

§  223.  Lawful  fences  in  certain  States. — West  Virginia 
— Worm  fence  four-and-a-half,  post  and  rails  or  boards,  picket 
fence  or  hedge  four,  and  stone  wall  three-and-a-half  feet  high.^ 

In  Wisconsin,  the  law  is  similar  to  that  of  Maine,  except 
that  the  standard  as  to  height  is  four-and-a-half  feet.^ 

In  Maryland,  although  there  is  no  general  law  as  to  what 
shall  constitute  a  lawful  fence,  there  are  local  laws  for  the  sev- 
eral counties,  by  the  terms  of  which  the  fences  of  various  kinds 
must  be  at  least  four  feet  high,  and  close  enough  to  prevent 
hogs  passing  through  or  under  them  in  some  of  the  counties.* 

In  New  York,  the  statute  leaves  the  whole  matter  of  the 
character  of  fences  to  be  determined  by  the  electors  of  each 
town  at  "  town  meetings."  ^ 

In  North  Carolina,  similar  provisions  leave  the  matter  to  the 
determination  of  the  voters  of  the  several  localities,  in  elec- 
tions duly  held,  except  that  there  is  a  general  statute,  by  the 
terms  of  which  each  planter  is  compelled  to  protect  his  culti- 
vated fields  by  a  fence  at  least  five  feet  high.*^ 

In  Pennsylvania,  also,  by  statute,  the  owner  of  corn-fields,  etc., 
must  keep  his  land  inclosed  by  good  fences,  at  least  five  feet 
high,  of  suflficient  rails  or  logs,  and  close  at  the  bottom ;  and 
incorporated  boroughs  in  the  Commonwealth  of  Pennsylvania 
have  power  to  make  needful  regulations  as  to  fences.'^ 

§  224.  Rivers  may  be  la-wful  fences. — Elvers,  ponds,  and 
creeks,  where  of  such  width  and  depth  as  to  constitute  as  much 
of  an  obstruction  to  the  passage  of  domestic  animals  as  the 
prescribed  fences,  are  generally,  by  the  several  statutes,  desig- 
nated as  lawful  fences,  and  lands  which  are  inclosed  by  lawful 

1  Virginia  Code,  1860,  Chap.  99,  Sec.  1;  Laws  1872,  ChaiD.  239. 

2  West  Va.  Code,  1868,  Chap.  CO. 

3  Taylor's  Stats.  Chap.  17. 

4  Laws  of  JNIaryland,  1870,  Chap.  433. 

5  Rev.  Stats.  N.  Y.  Part  1,  Chap.  11,  Tit.  2,  Art.  1,  Sec.  1. 

6  Eev.  Code  N.  C.  Chap.  48,  Laws  1871,  Chap.  187,  Laws  1873,  Chap.  98,  and 
Laws  1873,  Chap.  193. 

T  Brightley's  Purdon  Dig.  693-5;  Ibid,  168. 


285  LAWFUL   FENCES.  §  225 

fences  and  water-courses  of  the  character  detailed  should  he 
deemed  lands  protected  by  a  lawful  fence ;  but  to  be  such  a 
lawful  fence  it  appears  that  it  must  be  so  far  impassable  as  in 
that  respect  to  be  equivalent  to  the  prescribed  fence  throughout 
the  year,  as  otherwise  it  is  not  such  a  water-fence  as  is  desig- 
nated by  the  law.^ 

§  225.  Fences  vrhich  are  as  efficient  as  lawful  fences 

to  turn  stock  and  protect  inclosures  are  generally  made  equiva- 
lent thereto,  as  a  compliance  with  the  fence  laws  of  the  vai'ious 
States. 

The  statutory  provisions  are  not  arbitrary,  as  a  general  rule, 
but  may  more  justly  be  regarded  as  giving  a  standard  to  which 
fences  must  conform  as  to  efficiency  in  order  to  merit  their  being 
regarded  as  lawful  fences. 

Thus,  in  many  of  the  States,  after  lawful  fences  are  speci- 
fically described,  qualifying  sections  occur,  which  provide,  in 
effect,  that  any  fence  which,  by  reliable  evidence,  shall  be  shown 
to  be  as  strong,  substantial,  and  as  well  calculated  to  protect  in- 
closures as  either  of  those  described,  shall  also  be  deemed  a 
lawful  fence,  and  in  other  of  the  States  the  matter  of  Avhat 
shall  be  deemed  lawful  fences  is  left  to  the  judgment  of  the 
fence-viewers  to  decide  whether  the  fence  is  of  a  character 
equal  in  efficiency  to  the  prescribed  lawful  fences.^ 

It  has,  in  some  instances,  been  provided  by  statute  that  where 

1  Lamb  v.  Hicks,  11  Met.  496,  in  which  it  was  held  that  a  partition  fence  on 
land  that  is  covered  part  of  the  year  with  the  waters  of  an  artiricial  mill-pond, 
but  is  occupied  and  used  as  a  pasture  or  mowing  land  during  another  part  of  the 
year,  is  not  a  water-fence  within  the  meaning  of  the  statute. 

2  Philips  I'.  Oystee,  32  Iowa,  257.  "Under  the  Iowa  statute,  which  requires 
fences  to  be  of  a  specific  height,  a  fence  of  less  than  the  specified  height,  if  it 
affords  equal  strength  and  security,  is  a  lawful  fence.  The  design  of  the  law 
was  to  provide  security  to  the  inclosed  fields  of  land-owners." 

So,  in  Vermont,  any  person  may  impound  animals  found  doing  damage  in  his 
inclosure,  and,  under  this  statute,  the  point  was  made  that  the  inclosure  must 
be  by  lawful  fences  as  prescribed  by  the  statute,  but  it  was  held  that  it  is  not 
essentialthat  the  inclosures  should  be  by  fences  Avhich  strictly  complied  with 
those  described  as  lawful  fences.  (Keith  v.  Bradford,  39  Yt.  34;  Davis  v.  Camp- 
bell, 23  Yt.  236.) 

Code  of  West  Yirginia,  1868,  Chap.  60 ;  Ketcham  v.  Stolp,  15  111.  341,  which  was  a 
case  where  defendant  had  been,  by  suit,  compelled  to  build  half  a  division 
fence,  and  did  so,  but  his  fence  did  not  conform  to  the  requirements  of  the  stat- 
ute as  to  lawful  fences,  but,  being  found  to  be  a  sufficient  fence  for  the  purpose, 
it  was  held  a  compliance  with  the  decree. 


§  226  LAWFUL    FENCES.  286 

the  sufficiency  of  a  fence  shall  come  in  question  in  any  suit,  it 
shall  be  presumed  to  have  been  sufficient  until  the  contrary  be 
establishecl,^  and  as  a  matter  of  practice,  the  rule  appears  to  be 
that  the  insufficiency  of  a  fence  when  an  excuse  for  a  trespass  is 
a  special  defense,  and  the  burden  of  establishing  it  falls  on  the 
defendant.^ 

§  226.   Obligation  to  fence  by  coterminous  proprietors. 

— Throughout  the  United  States,  the  statute  laws  are  to  tlie 
effect  that  where  coterminous  proprietors  have  their  lands  under 
cultivation,  each  shall  build  and  maintain  in  good  repair  his  half 
of  so  much  of  the  fence  as  constitutes  his  boundary. 

It  may  be  true,  as  a  fundamental  principle  of  the  common 
law,  that  no  man  is  bound  to  fence  against  the  cattle  of  others, 
and  that  the  owner  of  animals  should  keep  them  restrained  from 
trespassing  upon  his  neighbor ;  but,  practically,  the  rule  in 
America  is,  as  a  general  thing,  without  vitality,  and  that  it  is  so 
is  recognized  by  these  statutes.  By  them,  the  occupants  of 
lands  which  are  inclosed  with  fences  are  required  to  build  and 
maintain  partition  fences  between  their  own  and  adjoining  in- 
closures,  in  equal  shares,  while  both  parties  continue  to  use 
them  for  such  purposes  of  agriculture  as  demand  that  they 
should  be  protected  from  encroachment  by  cattle.^ 

1 1  E.  S.  Part  1,  Chap.  11,  Tit.  4,  Art.  4. 

2  Colclen  V.  Eldred,  15  Johns.  220. 

3Eev.  Code  Ala.  1867;  A.  J.  Walker,  Sees.  1282-92;  Chap.  76,  Digest  of  1858; 
Chap.  87,  Laws  1873;  Chap.  96,  Eev.  Stats.  Ark.;  Genl.  Stats.  Conn.  Eev.  1866, 
443  et  seq. ;  Hittell's  Digest  Cal.  Vol.  1,  Sec.  3036.  This  is  not  affected  by  code. 
(See  Sec.  19,  Subdivision  23,  Political  Code,  1872.)  Stats,  of  111.  Eev.  Code,  1852, 
p.  158;  1  Gross  Stats.  111.  Chap.  51;  1  Eev.  Stats.  Ind.  1862,  Chap.  62;  Code  of 
Iowa,  1873,  Tit.  11,  Chap.  4;  Genl.  Stats.  Kans.  Chap.  40,  Art.  3;  Genl.  Stats.  Ken- 
tucky, Chap.  55;  Eev.  Code  La.  1870;  Civil  Code,  Chap.  3,  Art.  1;  Eev.  Stats.  Me. 
1871,  Tit.  1,  Chap.  3;  Genl.  Stats.  Mass.  Chap.  25;  1  Comp.  Laws  Mich.  1871,  Chap. 
4;  Eev.  Stats.  Minn.  1866,  Chap.  18;  Eev.  Stats.  Miss.  1870,  Chap.  33;  1  Wagner's 
Stats.  Mo.  Chap.  71;  Genl.  Stats.  Nebraska,  1873,  Chap.  2;  2  Comp.  Laws  Nev. 
1873,  p.  459;  Genl.  Stats.  N.  H.  1867,  Chap.  128;  Nixon's  Dig.  N.  J.  Laws,  {4th  Ed.) 
331;  1  Eev.  Stats.  N.  Y.  Part  1,  Chap.  11;  1  Eev.  Stats.  Ohio,  Chap.  45;  Bright- 
ly's  Purd.  Dig.  Penn.  168,  G93-5;  Genl.  Stats.  E.  L  1872,  Chap.  94;  Code  of  Tenn. 
Sec.  4652,  Acts  1870-71,  Chap.  36,  Sec.  3;  Genl.  Stats.  A't.  Chaps.  28  and  102;  Code 
of  Va.  1860,  Chap.  99;  Code  of  W.  Va.  1868,  Chap.  60;  1  Taylor's  Stats.  Wis. 
Chap.  17. 

In  building  line  fence,  each  party  has  the  right  to  go  upon  the  lands  of  the 
other,  and  may  deposit  thereon,  temporarily  and  for  the  purposes  of  the  work, 
stone  or  other  material  for  the  fence.    The  party  so  entering  upon  another's 


287  LAWFUL  FENCES.  §§  227-8 

§  227.  The  owner  of  uninclosed  land  need  not  join  in 
fencing. — The  obligation  to  fence  arises  whenever  by  joining 
fences  the  inclosiire  is  completed;  and  until  such  time  as  the 
owner  of  land  does  surround  it  by  fences,  in  such  manner  as  to 
exclude  therefrom  cattle  and  other  live-stock,  he  cannot  be  com- 
pelled to  pay  for,  build,  or  maintain  any  part  of  the  fence 
which  separates  his  land  from  that  of  his  neighbor.  Hence,  it 
results  that  when  a  fence,  being  built  by  one  of  such  cotermin- 
ous proprietors,  is  joined  to  by  the  other  proprietor,  and  his 
inclosure  thereby  made  complete,  he  should  pay  for  half  of  the 
fence  joined  to  at  its  then  present  value,  and  thereafter  main- 
tain his  half  in  good  repair. 

Where  one  party  ceases  to  improve  his  land,  or  throws  it 
open  to  the  commons,  he  must  not  take  away  any  part  of  his 
partition  fence  adjoining  the  next  improved  inclosure  if  the 
owner  or  occupant  of  such  inclosure  elects  to  pay  its  value 
within  a  reasonable  time,  which  is  generally  fixed  by  statute.^ 

Where  adjacent  lands  have  been  occupied  in  common,  though 
owned  in  severalty,  and  either  party  wishes  to  segregate  his 
tract  and  occupy  it  alone,  he  may  compel  the  other  party  to 
build  or  pay  for  one-half  of  the  fence  necessary  to  divide  the 
two  tracts.  The  process  of  so  compelling  a  division  of  the  ex- 
pense is  matter  of  legislative  enactment,  the  details  of  which 
appear  by  reference  to  the  statutes  of  the  several  States. 

§  228.  Where  a  -water-course  is  the  boundary  the  divi- 
sion fence  may  be  on  either  side.  If  a  pond,  stream,  or  gulch 
is  the  boundary  of  tracts  of  land  which  belong  to  different  per- 

land,  for  the  indicated  piTrpose,  is  not  a  trespasser,  so  long  as  lie  does  no  unnec- 
essary damage  to  the  iiremises.     (Carpenter  r.  Halsey,  57  Is".  Y.  658.) 

1  The  statutes  of  the  several  States,  before  referred  to  herein,  have  provisions 
more  or  less  explicit  to  this  effect. 

It  has  been  held,  by  the  Supreme  Court  of  Illinois,  that  a  partition  fence, 
whether  existing  by  agreement,  acquiescence,  or  statutory  provision,  cannot  be 
removed  until  the  parties  interested  in  its  remaining  are  properly  notified  of 
the  intended  removal.     (McCormick  v.  Tate,  20  111.  334.) 

Gray  v.  Waterman,  40  111.  522,  and  in  another  case,  where  there  was  an  outer 
and  an  inner  fence  to  a  field,  a  party  not  having  an  exclusive  right  to  the  field 
must  not  remove  the  inner  fence,  although  it  belongs  to  him,  without  assuming 
the  risk  of  injury  to  the  crop ;  and  it  is  no  defense  to  show  that  the  complainant 
was  bound  to  keep  the  outer  fence  in  repair,  or  that  he  might  have  repaired  it 
at  small  expense.    (Buckmaster  v.  Cool,  12  111.  74;  McCormick  v.  Tate,  Ante.) 


§  228  ■  LAWFUL   FEXCES.  288 

sons,  and  such  natural  division  is  not  so  far  impassable  as  to 
constitute  a  sufficient  fence,  but  it  is  impracticable  to  build  or 
maintain  one  on  the  line  along  the  center  of  it,  in  any  case 
where  the  circumstances  are  such  that  one  party  could  compel 
the  other  to  erect  and  keep  in  repair  a  division  fence,  tliis  right 
is  not  lost  because  the  fence  cannot  be  put  upon  the  line ;  but 
if  the  occupant  of  the  land  on  one  side  refuses  or  neglects  to 
join  with  the  occupant  of  the  land  on  the  other  in  making  a 
partition  fence  on  one  side  or  the  other,  then  he  who  desires  the 
fence  to  be  built  may  erect  it  on  such  side  of  the  stream  as 
may  be  most  expedient,  and  compel  the  other  party  to  pay  for 
and  maintain  one-half  of  such  fence  in  good  repair ;  and  tlie 
fence  so  built  is  thereafter  a  partition  fence,  and  is  so  regarded 
in  all  respects,  notwithstanding  it  is  wholly  upon  the  land  of  one 
of  the  parties.^ 

1  Bissell  w.  Southworth,  1  Eoot,  269.  It  was  at  an  early  date  (1791)  decided  in 
Connecticut  that  Avhere,  a  river  being  the  line,  no  fence  could  be  made,  and 
that,  therefore,  the  case  ought  to  be  ruled  by  principles  of  reason  and  justice, 
either  owner  of  adjoining  i:)remises  may  erect  a  partition  fence ;  and  the  use  of 
so  much  of  his  neighbor's  land  as  is  requisite  for  that  purpose  is  held  to  be  not 
adverse,  but  by  jiermission  of  the  owner.     (Dysant  v.  Leeds,  2  Barr,  488.) 

These  instances,  where  a  fence  upon  land  is  not  part  of  the  realty  to  which 
they  are  attached,  are  exceptional  from  the  general  rule,  and  as  such  liable  to 
strict  construction ;  it  is,  therefore,  prudent  to  com^^ly  strictly  with  the  statut- 
ory requirements  before  putting  a  fence  on  another  man's  land.  The  i^re- 
sumjition  is  that  a  fence  is  part  of  the  realty,  and  this  presumption  can  be  over- 
come only  by  showing  compliance  with  the  statute.  •  (Brown  v.  Bridges,  31 
Iowa,  138;  Voorhies  v.  McGuiness,  48  N.  Y.  278.) 

So  far  has  this  reasoning  been  carried,  that  it  was  held  that  loose  rails,  laid  up 
in  a  fence  inclosing  a  field,  are  a  part  of  the  freehold,  although  the  fence  is  not 
staked  with  stakes  sunk  into  the  ground.  (Smith  v.  Carroll,  4  Greene,  146,  and 
to  the  same  point,  Goodrich  i\  Jones,  2  Hill,  142 ;  Walker  v.  Sherman,  20  "Wend. 
C39;  Bishop  v.  Bishop,  11  N.  Y.  123.) 

It  has  also  been  held  that  a  fence  built  upon  public  land,  even  by  mistake, 
passes  with  the  freehold  to  the  purchaser  from  the  Government ;  and  if  such 
fence  is  detached  from  the  realty  by  a  wi-ong-doer  the  purchaser's  right  to  it  is 
not  divested ;  and  in  such  a  case  the  party  who  built  the  fence  becomes  a 
wrorig-doer  by  taking  it  away.     (Burleson  ?).  Teej^le,  2  Greene,  542.) 

In  Wisconsin,  it  has  been  held  that  rails  i^laced  along  the  boundary  line  of 
lands  for  the  purpose  of  being  laid  up  in  a  fence,  though  not  actually  applied 
to  that  use,  will  jiass  by  a  conveyance  of  the  lands,  there  having  been  a  mani- 
fest appropriation  of  them  to  the  use  of  the  land.  (Conklin  v.  Parsons,  1 
Chandler,  240.) 

Yates  V.  Van  De  Bogart,  N.  Y.  Court  of  Appeals,  Feb.  6th,  1875.  "A  fence  was 
built  by  plaintiff's  grantees  on  the  west  side  of  the  creek,  in  a  jilace  where  it 
could  be  conveniently  put  without  danger  of  being  washed  away,  not  as  a 
line  fence,  but  to  prevent  cattle  from  coming  across  the  creek  upon  the  land. 


289  LAWFUL    FENCES.  §  229 

§  229.  Fence- viewer^  and  their  duties. — Fence-viewers, 
whose  official  duties  arc  to  apportion  and  allot  to  each  coterminous 
proprietor  his  portion  of  the  division  fence  to  be  built  or  main- 
tained, are  by  statute  provided  for  in  many  of  the  States.^ 

It  is  their  province  to  determine  such  controversies  as  may 
arise  as  to  the  necessity,  under  the  law,  of  a  fence  being  built ; 
and  if  a  dispute  arises  between  the  owners  of  adjoining  lands, 
concerning  the  proportion  or  particular  part  of  any  fence  to  be 
built  or  maintained  by  either  of  them,  such  dispute  must  be  set- 
tled by  the  fence-viewers. 

In  such  case,  upon  notice,  the  fence-viewers  go  upon  the  land, 
hear  the  testimony,  and  examine  the  premises  ;  their  decision  is 
rendered  in  Avriting,  must  contain  a  description  of  the  fence, 
and  of  the  proportion  to  be  built  or  maintained  by  each,  and  be 
filed  with  the  town  clerk,  or  recorded  as  provided  in  the  several 
States. 

With  similar  provisions  as  to  notice,  any  dispute  as  to  the 
value  of  the  portion  of  the  fence  which  has  been  erected  by  one 
of  two  coterminous  proprietors  of  land,  which  the  other  should, 
by  law,  pay  for,  may  be  referred  to  the  decision  of  the  fence- 
viewers,  and  all  differences  of  a  like  nature,  in  the  matter  of  the 

The  owner  of  tlie  land  occupied  by  defendant,  on  the  opposite  side  of  the  creek, 
had  built  and  kept  up  at  times  a  fence  running  across  the  creek  and  conecting 
with  the  first  fence. 

"  Held,  that  this  did  not  tend  to  show  an  adverse  possession;  neither  did  the 
facts  that  defendant's  horses  and  cattle  sometimes  crossed  the  creek  upon  the 
strip  between  the  fence  and  the  creek." 

1  Connecticut,  Delaware,  Illinois,  Indiana,  Iowa,  Kansas,  Nebraska,  Maine, 
Massachusetts,  New  York,  New  Hampshire,  Rhode  Island,  Vermont,  Yv^isconsin, 
Pennsylvania. 

In  Connecticut,  the  duty  of  fence-viewers  is  also,  to  some  extent,  imposed  up- 
on the  selectmen  of  the  towns.  In  New  Jersey,  the  town  committee  acts  as  a 
board  of  fence-viewers ;  in  Ohio,  the  township  trustees ;  and  in  Minnesota,  the 
town  supervisors  perform  their  duties;  in  Alabama  fence- viewers  are  appointed 
by  the  County  Court. 

The  Supreme  Court  of  Alabama  has  held  that  the  partition  fence  is  the  joint 
property  of  both  parties;  that  each  is  boimd  to  keep  the  wliole  line  in  repair, 
and  that  neither  party  can  maintain  trespass  against  the  other  for  an  injury  con- 
seqvient  on  an  insufficient  fence,  because  the  duty  of  maintaining  it  is  upon 
each. 

Therefore,  if  the  fence  need  repairs,  either  party  may  do  the  work  and  enforce 
contribution  by  action  before  the  appropriate  tribunal,  althougli  viewers  have  not 
been  appointed  by  the  County  Court.    (Walker  v.  Watrous,  8  Ala.  493. ) 

Farm— 19. 


§  230  LAWFUL   FENCES.  290 

duty  to  build,  contribute  toward,  pay  for,  or  maintain   fences, 
are  to  be  adjudicated  between  the  parties  by  the  fence-viewers.^ 

§  230.  The  mode  of  acquiring  jurisdiction  by  fence- 
vie"wers,  and  of  their  procedure,  is  substantially  the  same  in 
the  several  States  wherein  such  officers  are  by  law  provided  for. 
The  aggrieved  party  complains  to  the  fence-viewers,  who  there- 
upon notify,  in  writing,  the  alleged  delinquent  to  build  or  repair 
the  fence,  either  within  such  time  as  is  prescribed  by  the  stat- 
ute, or  the  viewers  deem  reasonable  ;  if  their  notice  and  direc- 
tion are  not  complied  with,  the  aggrieved  party  may  build  or  re- 
pair the  fence,  and  the  fence-viewers,  finding  it  done  to  their  sat- 
isfaction, assess  the  cost ;  and  if,  after  demand,  the  party  who 
ought  to  have  built  or  repaired  the  fence  fail  for  a  specified 
time,  generally  one  month,  to  pay  the  amount  assessed,  he  who 
has  done  the  work  has  his  action  for  such  amount,  with  costs 
and  interest.^ 

1  The  existence  of  a  dispute  about  a  partition  fence  is  sufficient  to  enable 
the  fence-viewers  to  interfere.  (Bryan  v.  Kortright,  4  Johns.  414.)  If,  however, 
there  has  been  no  dispute  as  to  the  proportion  of  the  expense  which  each  party 
ought  to  bear,  a  decision  by  the  fence-viewers  need  not  be  shown.  (Willoughby 
V.  Carleton,  9  Johns.  136.) 

To  confer  jurisdiction  upon  fence- viewers,  tlie  fence  respecting  Avhich  they  de- 
termine must  be,  in  fact,  a  i)artition  fence,  and  they  cannot  conclude  a  party  by 
determining  that  to  be  a  partition  fence  which  is  not.  (Bills  v.  Belknap,  38 
Iowa,  225.) 

2  Clark  V.  Brown,  18  "Wend.  231.  The  parties  owned  adjoining  tracts  of  land, 
and  from  defects  in  Brown's  jiortion  of  the  division  fence,  Clark's  oxen  got  in 
upon  Brown's  crop  of  corn,  and  ate  so  much  of  it  as  to  kill  themselves;  the 
fence-viewers,  being  called  in,  assessed  Clark's  damages  at  the  value  of  the  cattle 
which  had  killed  themselves.  In  the  lower  Court  it  was  held  that  the  jurisdic- 
tion of  the  viewers  extended  only  to  ordinary  results  from  defective  fences, 
such  as  trespass  by  stock,  injury  by  them  to  crops,  etc.,  and  hence  declared  in 
favor  of  defendant;  but  on  appeal  the  converse  was  held  to  be  the  law,  that  the 
matter  was  within  the  ijrovince  of  the  viewers  to  make  the  assessment,  and  that 
their  decision  was  final.  The  laws  of  Xew  York,  however,  afterward  restricted 
the  damages  to  sucli  as  shall  accrue  to  lands,  crops,  shrubbery,  and  fixtures  con- 
nected with  the  land ;  but  the  decision  is  of  value,  as  it  gives  character  to  the 
acts  of  the  viewers,  and  decides  that  in  a  case  within  their  jurisdiction  the  de- 
cision of  the  fence-viewers  is  conclusive. 

But  it  is  essential  that  the  jurisdiction  facts  should  appear,  and  it  is  necessary 
to  prove  that  the  joroper  notices  were  given.  (Lamb  7:.  Ilicks,  11  Met.  49G; 
Franklin  v.  Wells,  G  E.  I.  422;  Baker  v.  Lakeman,  12  Met.  195;  Longley  v.  Hil- 
ton, 34  Maine,  322.) 

It  has,  however,  been  held,  in  Connecticut,  that  fence-viewers  need  not  give 
notice  of  their  meeting  to  estimate  repairs.  (Edgerton  v.  Moore,  28  Conn.  GOO.) 
Also,  that  fence-viewers  were  not  judicial  officers  (Ibid);  but  in  a  subsequent  de- 


291  LAWFUL    FENCES.  §§  231-2 

§  231.  A-ward  of  fence-viewers  a  lien  upon  the  land. — 

The  award  by  the  fence-viewers  of  a  specified  portion  of  a 
partition  fence  to  the  owners  of  the  adjoining  tracts  of  land,  to 
be  by  them  built  or  maintained,  such  award  having  been  made 
on  due  notice,  in  proper  form,  and  duly  recorded,  or  filed  with 
the  town  clerk,  becomes  by  operation  of  the  statutes  a  servitude 
upon  the  lands,  by  which  they  are  charged,  each  tract  to  the 
other,  with  the  duty  of  maintaining  such  fences  ;  it  is,  however, 
to  be  observed,  that  no  person  who  purposes  leaving  his  land 
"  open  commons  "  shall  be  charged,  nor  can  his  land  be  incum- 
bered by  any  award  or  record ;  but  so  soon  as  he  incloses  his 
land  by  joining  fences  with  his  neighbor,  he  is  bound,  and  the 
obligation  then  arises  to  pay  for,  and  thereafter  maintain,  one- 
half -of  the  fence  thus  joined,  so  far  as  it  serves  to  complete  his 
inclosure.^ 

§  232.    Fence-viewers  to  assess  damage  by  animals. — 

The   assessment  of  damage  done  by  animals  trespassing  upon 

cision  the  same  Court  recognizes  the  necessity  of  a  notice  being  given,  but  de- 
clares that  it  may  be  of  an  informal  character,  and  that  personal  service  was  not 
essential  (Greggor  v.  Stratton,  29  Conn.  421);  and  in  Hollister  v.  Hollister,  35 
Conn.  241,  it  was  held  that  fence-viewers  are  ^itasii-jjublic  officers,  and  tlie  fact 
that  they  have  acted  officially  is  presumptive  evidence  of  their  appointment 
and  qualification. 

The  general  current  of  the  laws  and  decisions  of  the  Courts  is  that  due  com- 
pliance with  the  statute  as  to  notice  must  be  shown.  (Harris  v.  Sturdevaut,  29 
Me.  366;  Sanford  v.  Haskell,  50  Me.  86;  Fairbanks  v.  Childs,  44  N.  H.  458;  Brad- 
burry  v.  Gilford,  53  Me.  99.) 

1  Alger  V.  Pool,  11  Cush.  450.  A  part,  only,  of  a  continuous  line  of  fence  had 
been  the  subject  of  assignment  by  fence-viewers,  and  it  was  thence  contended 
that  the  assignment  was  iuvalid,  but  the  Court  held  otherwise,  neither  party 
having  requested  that  the  whole  line  be  divided.  (To  the  same  point,  Prescott 
V.  Mudgett,  1  Shep.  423.) 

It  was  further  held  that,  after  such  assignment  had  been  made,  the  obligations 
of  the  parties  are  fixed  to  maintain  the  fence  accordingly,  and  cannot  be 
changed  without  consent  of  both,  by  a  subsequent  view  and  decision  by  the 
fence-viewers.    (Baker  u.  Lakeman,  12  Met.  195.) 

The  Supreme  Court  of  Errors,  in  Connecticut,  have  held  that  the  fence-viewers 
are  the  sole  judges  in  questions  respecting  the  sufficiency  of  fences,  and  are  to 
decide,  by  direct  examination,  without  any  formal  hearing  or  trial,  whether 
an  existing  fence  is  or  is  not  such  as  the  statute  requires.  (Fox  v.  Beebee,  24 
Conn.  271.) 

If  the  assignment  of  the  fence-viewers  as  to  partition  fences  is  not  recorded, 
one  of  the  coterminous  proprietors  cannot  maintain  an  action  against  the  other 
for  double  the  expense  of  building  the  fence,  as  by  the  statute  provided.  (Ellis 
V.  EUis,  39  Maine,  526.) 


§  232  LAWrtJL  FENCES.  292 

inclosed  lands  also  devolves,  by  these  statutes,  upon  the  fence- 
viewers. 

UjDon  application  by  the  j)arty  injured,  the  fence-viewers  go 
upon  the  premises,  estimate  the  amount  of  damage  done,  and 
give  their  decision  in  the  form  of  a  written  certificate  ;  the 
payment  of  the  amount  so  assessed  by  them  may  thereafter  be 
enforced  by  a  civil  action  in  any  Court  of  competent  jurisdic- 
tion, and  upon  the  trial  of  such  action,  the  report  of  the  fence- 
viewers  is  prima  facie  e\'idence  of  the  amount  of  the  damage 
sustained.^ 

1  It  has  been  decided,  in  New  York,  that  any  person  distraining  animals  doing 
damage  upon  his  premises,  must  have  his  damages  assessed  by  the  fence-viewers 
within  the  statute  time,  or  he  will  forfeit  the  right  to  detain  the  animals,  and 
the  owner  may  retake  them.     (Hale  v.  Clark,  19  Wend.  498 ;  Clark  v.  Brown. ) 

In  I^Iaine,  it  has  been  held  that  it  is  obligatory  ujion  a  party  who  undertakes 
to  justify  the  taking  up  and  impounding  another's  cattle,  to  show  a  full  and  en- 
tire compliance  with  the  requisitions  of  the  statute,  or  he  becomes  a  trespasser 
ab  initio.  (Morse  v.  Eeed,  28  Me.  481;  James  v.  Tibbetts,  GO  Me.  557;  Hartshorn 
V.  Schoff,  51  N.  li.  316;  Milligan  v.  Wehinger,  68  Penn.  St.  235.) 

"  In  a  township  in  which  the  hog  law  has  not  been  susjiiended,  it  is  no  defense 
to  an  action  for  damages  done  to  a  crop  by  hogs  suffered  to  run  at  large,  that 
.  the  crop  is  not  inclosed  by  a  legal  and  sufficient  fence. 

"In  such  case,  there  is  no  necessity  of  applying  to  the  fence-viewers  for  a  cer- 
tiiicate  and  assessment  of  damages,  whatever  may  be  the  rule  in  the  case  of 
damage  done  by  neat  cattle,  or  sheep,  or  by  hogs  in  a  township  where  the  hog 
law  has  been  suspended."  (Wells  v.  Beal,  9  Kan.  597;  Baker  v.  Robins,  9  Kan. 
303.) 


293  RAILROAD   FENCES.  §  233 


CHAPTER  XXL 

RAILROAD    FEXCES. 

§  233.  Duty  of  railroad  company  to  fence. 

§  234.  Damage  by  engines  running  into  animals. 

^  235.  Greneral  rules  as  to  obligation  to  fence  by  raflroad  companies. 

§  236.  State  laws  as  to  fencing  by  railroad  companies. 

I  237.  Liability  of  railway  companies,  rulings  of  State  Courts. 

§  238.  Application  of  fence  laws  to  railway  comj)ames. 

§  239.  Construction  of  fence  laws  as  to  railroads. 

&  240.  Laws  to  compel  railroad  companies  to  fence. 

§  241.  Damage  to  live-stock  by  locomotives. 

§  233.  Duty  of  railroad  company  to  fence. — Upon  whom 
rests  the  duty  to  maintain  fences  along  the  sides  of  railroads  has 
been  the  subject  of  judicial  comment,  to  a  great  extent,  both  in 
England  and  America,  as  well  as  legislative  enactments  both  in 
England  and  the  United  States. 

By  the  English  law,  it  is  now  obligatory  ujDon  the  railroad 
companies,  before  they  use  land  for  the  purposes  of  their  roads, 
to  fence  it,  leaving  convenient  crossings,  gates,  etc.,  for  the  owner 
of  the  adjacent  lands  ;  and  the  expenses  of  such  construction  in 
no  wise  affects  the  amount  of  compensation  awarded  as  land 
damages.^ 

In  some  of  the  United  States,  also,  similar  statutes  provide 
that  railroad  companies  must  build  and  maintain,  in  good  repair, 
fences  along  both  of  the  exterior  lines  of  the  space  devoted  to 
their  roads,    with   cattle-guards  at  road-crossings   sufficient  to 

1  8  and  9  Vic.  Chap.  20,  Sec.  40.  "  Cattle  of  the  plaintiffs  were  driven  along  a 
road,  across  which  were  some  sidings  belonging  to  the  defendants,  when  some 
trucks  of  defendants  were  negligently  allowed  to  run  down  it  across  the  road, 
separating  the  cattle  from  the  drovers,  and  frightening  them  so  that  some  of 
them  ran  down  the  road,  broke  {hrough  an  imperfect  fence  into  an  orchard, 
whence  they  strayed  upon  defendant's  railroad,  and  were  killed.  Held,  that  the 
defendants  were  liable,  and  that  the  damage  was  not  too  remote ;  and  that  the 
imperfect  condition  of  the  orchard  fence  was  no  defense  to  the  action." 

Sneesby  v.  L.  and  Y.  R.  R.  Co.  English  Court  of  Appeal,  from  the  Queen's 
Bench,  Nov.  8th,  1875;  3  Cent.  L.  J.  141,  March  3d,  1876. 


§  234  RAILROAD    FEXCES.  294 

prevent  domestic  animals  straying  upon  the  track  ;  and  that  when 
such  fences  and  cattle-guards  have  not  been  built,  or  are  not  in  good 
repair,  the  railroad  corporations,  and  in  some  instances,  also, 'its 
agents,  whose  duty  it  is  to  attend  to  the  compliance  with  the  re- 
quirements of  the  statute,  are  made  liable  for  all  damages  to 
animals  by  collision  with  passing  trains,  caused  by  animals  get- 
ting to  the  track  by  reason  of  the  absence  or  insufficiency  of 
fences.^ 

In  other  of  the  States  the  obligation  is  less  distinct  and  com- 
pulsory, but  is  recognized  in  general  terms,  or  made  dependent 
upon  the  decision  of  railroad  commissioners  or  other  State 
officers.^ 

§  234.  Damage  by  engines  running  into  animals. — The 

liability  of  railway  companies  for  damage  done  by  their  engines 
running  into  domestic  animals  has  been  a  question  so  fruitful  of 
litigation,  and  the  decisions  of  the  Courts  have  varied  to  such 
an  extent,  that  it  is  very  difficult  to  deduce  any  general  rule  in 
the  premises.  The  statutes  controlling  the  liability  of  the  com- 
panies, although  in  general  characteristics  similar,  differ  in  de- 
tails ;  and  the  cases  in  which  have  been  involved  the  construction 
of  statutes  intended  to  impose  upon  railroad  companies  the  duty 

1  California  Civil  Code,  Sec.  485.  Unless  the  damage  occurs  through  the  neg- 
lect or  fault  of  the  owner  of  the  animal  killed  or  maimed,  and  if  the  company,  by- 
award  of  compensation  for  land  taken,  or  by  direct  agreement  with  the  party, 
is  relieved  from  the  responsibility. 

In  Illinois,  general  rules  and  exceptions,  similar  in  effect  to  those  in  California, 
and  an  exception  in  favor  of  the  company,  that  where  lands  more  than  live 
miles  from  any  town,  village,  or  settlement,  are  open  commons;  through  them 
the  road  need  not  be  fenced.     (1  Gross,  Stats,  of  111.  Chap.  539,  Sec.  25  et  seq.) 

Laws  of  Iowa,  1862,  Chap.  169,  Sec.  6;  Revised  Stats.  Maine,  Tit.  4,  Chap.  51, 
Sec.  20  et  seq. ;  1  Comp.  Laws.  Mich.  Chap.  75,  Sec.  43 ;  Genl.  Stats.  Nebraska, 
Chap.  2,  Sec.  145. 

In  New  York,  the  statute  is,  in  effect,  the  same  as  in  California.  (Laws  of  K 
Y.  1850,  Chap.  140,  Sec.  44  et  seq. ;  3  Stats,  at  Large,  635  et  seq. ;  Laws  of  1854, 
Chap.  282,  Sees.  8-9;  3  Stats  at  Large,  643;  Ibid,  1864,  Chap.  582,  Sec.  2;  6  Stats, 
at  Large,  867 ;  1  R.  S.  Ohio,  Chap.  29,  Sees.  35,  180  et  seq. ;  1  Taylor's  Stats,  of 
Wisconsin,  Chap.  76,  Sec.  379.) 

2  In  Connecticut,  by  statute,  every  railroad  company  must  build  and  main- 
tain fences  on  both  sides  of  the  track,  except  where,  in  the  opinion  of  the  rail- 
road commissioner,  it  may  be  deemed  inexpedient  so  to  do. 

The  company  so  failing  to  comply  with  the  law  forfeits  fifty  dollars  for  each 
day  that  the  neglect  continues ;  half  the  penalty  goes  to  the  citizen  who  sues,  the 
balance  to  the  State.    (Stats.  Conn.  186G-8,  p.  50.) 


295  EAILROAD    FENCES.  §  234 

of  fencing  their  roads,  have  been  so  numerous,  and  have  pre- 
sented so  many  exceptions  to  the  general .  rules  prescribed  by- 
statutes,  that  a  reliance  upon  the  letter  of  the  law  is  by  no 
means  safe.  Thus,  by  the  law  in  Georgia,  it  is  enacted  that 
"  the  several  railroad  companies  of  the  State  shall  be  held  liable 
in  law  for  any  damage  done  to  live  stock  or  other  property  "  ; 
and,  to  avoid  this  liability,  it  appears  that  the  roads  must  be 
fenced ;  but  the  Court  of  last  resort  in  that  State  has  held  that, 
animals  having  been  run  over  by  trains,  it  was  not  enough  to 
show  that  they  got  upon  the  company's  land  through  defects  in 
their  fences,  but  the  complainant  must  show  negligence  in  the 
actual  occurrence,  on  the  part  of  the  employees  of  the  com- 
pany. In  another  case,  that  if  the  owner  of  the  stock  neglects 
proper  care,  the  company  is  not  responsible,  and  that,  on  a  trial, 
the  burden  of  proof  of  actual  negligence  is  on  the  part  of  the 
owner  of  the  animals.^ 

Substantially  the  converse  of  these  propositions  have  been 
the  decisions  of  the  Courts  in  New  York,  Indiana,  South  Caro- 
lina, and  some  of  the  other  States.  The  Court  of  Appeals  in 
New  York  has  held  that  the  statute  which  prescribes  to  railroad 
companies  that  they  shall  fence  their  roads  was  passed  from 
public  considerations ;  that  its  purpose  was  to  protect  the  trav- 
eling public,  as  well  as  the  farmers  along  the  lines  of  the  roads  ; 
and  that  railroad  companies  are  required  to  fence  both  sides  of 
their  track,  and  are  liable  for  damages  sustained,  so  long  as  such 
fences  are  not  made  and  maintained  by  the  company.^ 

The  Courts  of  Indiana  declare  these  statutes  requiring  rail- 
road companies  to  fence  to  be  a  police  regulation  for  the  protec- 
tion of   the    public,  without   regard   to  any   possible  duty  or 

1  Georgia  R.  R.  Co.  v.  Anderson,  33  (leo.  ilO;  Jones  v.  Central  R.  R.  Co.  21 
Geo.  104;  M.  &  W.  R.  R.  Co.  v.  Davis,  13  Geo.  IM. 

2  B.  N.  Y.  &  E.  R.  R.  Co.  v.  Shepliard,  35  N.  Y.  641.  And  it  was  held  to  be  no 
defense  to  an  action  to  recover  the  value  of  animals  killed,  that  he  to  whom  the 
cattle  belonged  was  legally  bound  to  build  such  fence,  under  a  covenant  between 
his  assignor  and  the  company.    (Ibid.) 

Warner  v.  Keokuk  R.  R.  Co.  Sup.  Ct.  Iowa,  Jan.  187G.  "  Where  a  party  pas- 
tures an  animal  in  afield  bordering  upon  a  railroad,  and  it  escapes  upon  the  rail- 
road track  through  a  defective  fence,  and  is  killed,  his  right  of  action  against  the 
railroad  company  cannot  be  defeated  on  the  ground  that  the  OAvner  of  the  field 
had  entered  into  a  contract  with  the  railroad  company,  wherein  he  agreed  to 
maintain  the  fence."    (Cent.  L.  J.  Jan.  14th,  187G.) 

Tracy  w.  T.  &  B.  R.  R.  Co.  38  N.  Y.  433. 


§§  235-6  RAILKOAD    FEXCES.  206 

neglect  of  it  on  the  part  of  the  owner  of  cattle  put  to  graze  on 
adjoining  lands.^ 

§  235.  Greneral  rules  as  to  obligation  of  railroad  com- 
panies to  fence  their  roads  cannot,  with  safety,  be  drawn  from 
the  statutes  of  the  several  States  and  the  decisions  by  their 
Courts  of  last  resort,  inasmuch  as  the  inconsistencies  are  so  ap- 
parent as  to  induce  the  belief  that  it  is  best  to  regard  the  law 
as  it  stands  in  the  State  where  the  damage,  residting  from  a 
failure  to  fence,  has  occurred. 

From  these  apparent  inconsistencies,  it  results  that,  by  its 
statutes,  and  the  decisions  of  its  Courts  construing  them,  each 
State  is  a  law  unto  itself  to  so  great  an  extent  as  to  make  inter- 
esting a  review  of  conclusions  arrived  at  by  the  Courts  of  last 
resort  in  the  several  States  of  the  Union. 

§  236.   State  laws  as  to  fencing  by  railroad  companies. 

— In  Alabama,  it  is  no  defense  on  the  part  of  the  company  to 
show  that  the  cattle  were  roaming  at  large.  Because  the  com- 
mon-law rule,  that  cattle  must  be  fenced  in,  never  in  that  State 
was  law,  it  is  questionable  whether  any  negligence  on  the  part 
of  the  owner  of  cattle  Avill  exonerate  the  corporation  from  dam- 
ages where  the  road  is  not  fenced,  and,  as  a  general  proposition, 
railroad  companies  are  liable  for  damages  caused  by  their  trains 
running  into  or  over  domestic  animals  when  the  requirements  of 
the  statute  have  not  been  complied  Avith.^ 

In  California,  any  railroad  company  which  continues  running 
its  cars  upon  an  open  track  undertakes,  at  its  peril,  that  no  harm 

1 1.  R.  R.  Co.  V.  Townsend,  10  Ind.  38;  Same  v.  Meek,  Ibid,  502;  J.  R.  R.  Co.  v. 
Applegate,  Ibid,  49;  Same  v.  Dougherty,  Ibid,  549;  T.  &  R.  R.  Co.  v.  Cory,  37 
Ind.  218;  Jeffersonville  Etc.  R.  R.  Co.  v.  O'Connor,  37  Ind.  95;  Same  v.  Sullivan, 
38  Ind.  262.  Under  the  Indiana  statute,  a  railroad  company  is  liable  for  cattle 
killed,  where  it  has  not  discharged  its  duty  of  fencing,  whether  the  county  com- 
missioners have  made  any  order  as  to  the  running  at  large  of  cattle,  or  not. 
(Jeffersonville  R.  R.  Co.  v.  O'Connor,  37  Ind.  95.)  To  same  effect,  Fritz  v.  Mil- 
waukee R.  R.  Co.  34  Iowa,  337.  But  a  railroad  company  is  not  liable,  under  the 
Iowa  laws,  18G2,  Chap.  1G9,  for  cattle  killed  on  its  track,  unless  the  same  were 
running  at  large  at  the  time  of  tlie  accident.  In  Smith  v.  Chicago  R.  R.  Co.  34 
Iowa,  90,  it  was  held  that  if  cattle,  while  being  driven,  in  charge  of  the  owner 
or  his  servant,  along  a  highway,  toward  a  railroad  crossing,  escape,  or  run  on 
to  the  track,  and  are  injured,  the  company  is  not  liable. 

2  N.  &  C.  R.  E.  Co.  V.  Peacock,  25  Ala.  229;  M.  R.  E.  Co.  v.  Malone,  4G  Ala.  391. 


297  EAILROAD    FENCES.  §  237 

shall  come  to  the  stock  running  in  the  field  through  which  the 
road  runs  for  want  of  a  proper  fence. ^ 

In  Connecticut,  the  railroad  company  must  fence,  unless,  in 
the  settlement  of  damages  for  taking  land  for  their  track,  an  al- 
lowance is  made  to  the  owner  for  fencing ;  and  in  that  event, 
unless  the  owner  of  the  land  so  builds  and  maintains  the  fence, 
he  cannot  recover  damages  for  injury  to  his  animals  by  passing 
trains.  The  company,  however,  as  to  the  public,  is  bound  to 
see  that  fences  are  built  and  maintained,  except  where  the  rail- 
road commissioners  deem  it  inexpedient  or  vmnecessary.^ 

In  Georgia,  the  decisions  are  to  the  effect  that  mere  want  of 
fences  is  not  sufficient  to  charge  the  company  with  damages  for 
injury  to  animals.  The  burden  of  proof  of  negligence  is  on 
the  plaintiff,  and  he  must  show  lack  of  due  care  in  running  the 
trains  before  he  can  recover.^ 

The  Illinois  statute  has  been  construed  to  the  effect  that  the 
company  must  maintain  fences,  and  is  liable  for  all  damages  re- 
sulting from  its  neglect  so  to  do,  regardless  of  the  question 
whether  it  used  due  care  or  not  in  running  its  trains.* 

§  237.  Liability  of  rail-way  companies ;  rulings  of  State 
Courts. — In  Indiana,  the  Courts  have  held  that  railroad  com- 
panies must,  except  in  certain  specified  cases,  keep  their  roads 
fenced ;  that  the  law  which  directs  them  so  to  do  is  a  police 
regulation  for  the  public  safety,  making  the  companies  liable 
for  all  damages  which  result  from  a  failure  on  their  part  to 
comply  with  this  statutory  provision,  whether  the  animals  in- 
jured belong  to  the  proprietor  of  the  land  through  which  the 
road  runs  or  not,  and  without  regard  to  negligence  on  the  part 
of  the  owner  of  the  animals.^ 

1  McCoy  V.  Cal.  P.  R.  E.  40  Cal.  532;  Waters  v.  Morse,  12  Cal.  535. 

2  Geul.  Stats.  Conn.  Tit.  7,  Chap.  7,  Sec.  488  et  seq. ;  Laws  of  1866,  Chap.  8T. 

3  M.  &  W.  E.  R.  V.  Davis,  13  Ga.  68;  Jones  v.  Central  R.  R.  Co.  21  Ga.  104;  G. 
R.  R.  Co.  V.  Anderson,  33  Ga.  110. 

4  St.  Louis  R.  R.  Co.  v.  Linden,  39  111.  433;  L  C.  R.  R.  Co.  v.  Swearinger,  47  111. 
206;  I.  C.  R.  R.  Co.  v.  Arnold,  Ibid,  173;  Lane  v.  Whalen,  42  111.  396;  Ohio  R.  R. 
Co.  V.  Bunbaker  47  111.  468. 

<^1.  R.  R.  Co.  V.  Townsend,  10  Ind.  38;  Lane  v.  Meek,  Ibid,  502;  J.  R.  R. 
Co.  V.  Applegate,  Ibid,  49;  J.  R.  R.  Co.  v.  Dougherty,  Ibid,  549.  AVhere  .sufficient 
fences  are  maintained,  no  recovery  can  be  had  without  proof  of  negligence  on 
the  part  of  the  employees  of  the  company.    (N.  I.  R.  R.  Co.  v.  Martin,  10  Ind. 


§  238  RAILROAD   TENCES.  298 

In  Iowa,  it  appears  that  rules  as  to  partition  fences  do  not 
apply  to  owners  of  land  and  railroad  companies ;  ^  but,  as  to 
third  persons,  railroad  companies  must  fence  their  roads,^  and 
generally  they  are  liable  for  all  damages  which  occur  by  reason 
of  defective  fences ;  ^  but  it  must  appear  that  the  company  had 
reasonable  notice  of  the  defect,  and  the  burden  of  proof  of  this, 
as  of  other  matters  of  neglect,  is  on  the  party  complaining.* 

In  Kentucky,  the  obligation  to  fence  does  not  appear  to  have 
been  imposed  upon  railroad  companies,  and  damages  can  only 
be  recovered  for  injuries  caused  by  negligence,  the  want  of 
fences  being  in  itself  no  evidence  thereof.^ 

§  238.  Application  of  fence  laws  to  railvray  compa- 
nies.— In  Louisiana,  the  same  rule  applies :  the  company  is  not 
absolutely  required  to  fence,  and  damages  to  stock,  which,  from 
the  absence  of  fences,  stray  upon  the  track,  can  only  be  recovered 
by  showing  wanton  neglect  on  the  part  of  the  employees  of  the 
company,  in  so  running  the  train  as  not  to  avoid  collision  with 
the  cattle.*^ 

In  Mississippi,  one  seeking  to  recover  damages  from  a  railroad 
company  for  injury  to  his  stock,  which  had  strayed  upon  the 
track,  must  allege  and  prove  negligence  further  than  a  failure 
to  fence.'^ 

In  Missouri,  the  statutes  to  compel  railroad  companies  to 
fence  have  been  held  constitutional  and  in  force,  as  a  police 
regulation,  for  the  protection  of  the  public ;  and  that  where  in- 
juries to  cattle  result  from  their  having  strayed  upon  a  track 
w  hich  was  not  properly  fenced,  the  owner  of  the   cattle  should 

4G0. )  And  in  the  exceptional  cases,  wherein  the  company  is  not  bound  to  fence, 
no  recovery  whatever  can  be  had  without  proof  of  negligence.  {I.  E.  R.  Co.  v. 
Caldwell,  9Ind.  397;  I.  E.  E.  Co.  v.  Erevoort,  30  Ind.  324.) 

1  Henry  v.  Dubuque  E.  E.  Co.  2  Iowa,  521. 

2  Eussell  V.  Hanley,  20  Iowa,  219. 

3  Hinman  v.  Chicago  E.  E.  Co.  28  Iowa,  491;  Andre  v.  K  W.  E.  E.  Co.  30  Iowa, 
107. 

*  Aylesworth  v.  C.  E.  E.  Co.  30  Iowa,  459;  Dewey  v.  C.  E.  E.  Co.-  Ibid,  373; 
Comstock  V.  Des  Moines  E.  E.  Co.  32  Iowa,  37G. 

c  L.  E.  E.  Co.  V.  Ballard,  2  Met.  177;  L.  E.  E.  Co.  v.  Wainscott,  3  Bush,  149;  L. 
E.  E.  Co.  V.  Milton,  14  B.  Mon.  75. 

G  Knight  V.  N.  O.  E.  E.  Co.  15  La.  105. 

■?  Eaiford  v.  M.  E.  E.  Co.  43  Miss.  233;  V.  &  J.  R.  R.  Co.  v.  Patten,  31  IVIiss.  156; 
M.  R.  R.  Co.  V.  Blakeney,  43  Miss.  218;  Same  v.  Orr,  Ibid,  279. 


299  EAILROAD   FENCES.  §  239 

recover  his  damages  against  the  company,  without  proof  of 
further  nefjlisrence.^ 

In  New  Hampshire,  raih-oad  companies  must  keep  their  roads 
fenced,  and,  failing  to  do  so,  are  liable  for  resulting  damages.^ 

In  New  York,  the  construction  given  to  the  laws  by  the  Courts 
is  that  upon  railroad  companies  is  imposed  the  duty  of  main- 
taining fences  on  both  sides  of  the  track  ;  that  this  duty  is  to 
the  public  and  the  owner  of  adjoining  lands,  and  the  company 
must  make  good  all  damages  resulting  from  a  neglect  to  keep 
the  road  fenced.^ 

§  239.   Construction  of   fence   laws   as  to  railroads. — 

In  South  Carolina,  railroad  companies  must  fence,  and  the  kill- 
ing of  animals  by  collision  with  a  train  is  prima  facie  evidence 
of  negligence,^  and  substantially  the  same  ruling  has  been  had 
in  Tennessee.^ 

In  Wisconsin,  railroad  corporations  must  erect  and  maintain 
fences  along  the  sides  of  their  roads,  and  are  liable  for  damages 
resulting  from  a  failure  to  do  so.^ 

In  Pennsylvania,  a  railroad  company  is  not  bound  to  fence  its 
road ;  an  owner  of  cattle  suffered  to  go  at  large,  and  which  are 
killed  or  injured,  has  no  recourse  on  the  company  or  its  servants ; 
on  the  contrary,  he  may  be  liable  for  the  damage  done  by  them 
to  the  company,  or  the  passengers  on  trains.^ 

1  Trice  w.  H.  R.  R.  Co.  49  Mo.  438;  Cecil  v.  P.  R.  R.  Co.  47  Mo.  246;  Ibid  v.  H. 
E.  R.  Co.  45  Mo.  469.  In  Laffity  v.  H.  R.  R.  Co.  44  Mo.  it  was  held  that  the  chief 
object  of  the  statute  was  to  protect  the  traveling  public  from  accidents  by  run- 
ning into  animals. 

2  Dean  v.  S.  R.  Co.  2  Foster,  316. 

3  B.  N.  Y.  &  E.  R.  R.  Co.  v.  Shepard,  35  N".  Y.  641;  Tracy  v.  Troy  &  B.  R.  R. 
Co.  38 K  Y.  433.  "An  act  induced  by  public  considerations,  the  purpose  of 
which  is  to  protect  the  traveling  public  and  the  owners  of  domestic  animals 
along  the  line  of  a  railroad,  should  receive  a  liberal  construction  to  effectuate 
the  benign  purpose  of  its  f  ramers ;  and  every  statute  should  be  expounded,  not 
according  to  the  letter,  but  according  to  the  meaning."  (Corwin  v.  N.  Y.  &  E.  R. 
R.  Co.  13  ISr.  Y.  42;  Munch  v.  K  Y.  C.  R.  R.  Co.  29  Barb.  647;  Chapman  v.  N.  Y. 
C.  R.  R.  Co.  33  N.  Y.  369;  Morrison  v.  N.  Y.  &  N.  H.  R.  R.  Co.  32  Barb.  568.) 

4  Murray  v,  S.  C.  R.  R.  Co.  10  Rich.  Law,  227;  Dawner  v.  Same,  4  Rich.  Law, 
S29. 

5  Home  V.  ]M.  R.  R.  Co.  1  Coldwell,  72. 

6  Sikes  V.  C.  R.  R.  Co.  24  Wis.  370;  Bro^vn  v.  M.  R.  R.  Co.  Ibid,  39. 

'  Railroad  Co.  v.  Skinner,  19  Penn.  St.  298;  Drake  v.  P.  &  E.  R.  R.  Co.  51  Penn. 
St.  240;  N.  P.  R.  R.  Co.  v.  Rehman,  49  Penn.  St.  101.  "An  owner  of  mules 
killed  upon  the  track  of  a  railroad  company,  by  an  engine  and  cars,  cannot  re- 


§  240  RAILROAD   FENCES.  300 

In  Ohio,  if  the  owners  of  cattle  permit  them  to  run  at  large 
in  the  vicinity  of  an  uninclosed  railroad  track,  and  do  not  choose 
to  avoid  danger  to  their  cattle  by  keeping  them  within  their 
own  inclosures,  they  can  ask  no  more  than  that  the  agents  of 
the  railroad  company,  in  the  legitimate  conduct  of  its  business, 
exercise  ordinary  and  reasonable  care  to  avoid  damaging  the 
property  of  others. ^ 

§  240.   Laws  to  compel  railway  companies  to  fence. — 

In  Massachusetts,  under  the  provisions  of  General  Statutes, 
Chap.  33,  Sees.  42,  43,  it  is  incumbent  upon  railroad  companies 
to  make  and  maintain  fences,  suitable  for  the  benefit  and  se- 
curity of  the  land-owner,  and  of  travelers  by  the  companies' 
trains,  upon  both  sides  of  the  railroad,  for  its  entire  length.^ 
And  the  only  rulings  of  the  Courts  in  Maine  have  been  to  the 
same  effect.^ 

In  Vermont,  the  obligations  upon  railroad  companies  to  build 
a  fence  along  their  road  only  extends  to  the  owner  or  rightful 
occupier  of  the  adjoining  fields,  and  not  to  mere  trespassers 
there;  that  if  one  suffer  his  animals  to  run  at  large,  and  they 

cover  damages  therefor,  though  they  escaped  from  a  properly  fenced  inclosure 
without  his  knowledge,  and  were  on  the  highway,  at  its  intersection  with  the 
track,  at  the  time  of  the  accident." 

1  C.  O.  R.  R.  Co.  V.  Lawi'ence,  13  Ohio  St.  66;  but  in  Kerwhacker  v.  Cleveland 
C.  &  C.  R.  R.  Co.  3  Ohio  St.  172,  it  was  held:  "There  is  no  law  in  Ohio  requiring 
railroad  companies  to  fence  their  roads,  hut  when  they  leave  their  roads  open 
and  uninclosed,  by  sufficient  fences  and  cattle-guards,  they  take  the  risk  of  in- 
trusions on  their  roads  by  animals  running  at  large,  as  do  other  i^roprietors  who 
leave  their  land  uninclosed;  so  that  the  owner  of  domestic  animals,  in  allowing 
them  to  be  at  large,  takes  the  risk  of  their  loss,  or  injury  to  them  by  unavoidable 
accident ;  and  the  company,  in  leaving  its  road  unprotected  by  an  inclosure, 
runs  the  risk  of  animals  at  large  getting  upon  the  road,  without  any  remedy 
against  the  owners  of  the  animals." 

2  Keliher  i\  C.  R.  R.  R.  Co.  107  Mass.  413.  Plaintiff's  cow  got  through  a  dry 
culvert,  upon  the  track,  and  was  run  over ;  the  comi^any  might  have  so  arranged 
the  culvert  as  to  prevent  cattle  iiassing,  but  did  not  do  so,  as  in  the  dry  season 
it  was  passable  for  stock ;  there  was  no  pretense  of  negligence  in  running  the 
train,  but  the  road  was  held  liable,  without  any  i:)roof  of  negligence.  (Rogers  v. 
K  R.  R.  Co.  1  Allen,  IG.) 

But  if  the  loss  occurs  through  the  negligence  of  the  owners  of  animals,  by 
allowing  them  to  be  unlawfully  on  land,  from  which  they  stray,  through  an  un- 
suitable fence,  upon  the  track,  and  are  killed,  the  company  is  not  responsible, 
although  the  fence  was  one  whijch  the  Com^sany  ought  to  have  maintained  in 
serviceable  condition.     (Eames  i'.  S.  &  L.  R.  R.  98  Mass.  560.) 

3  Wyman  v.  P.  &  K.  R.  R.  46  Me.  162;  Gilman  v.  E.  &  N.  A.  R.  Co.  CO  Me.  235. 


301  RAILROAD   FENCES.  §  241 

get  upon  lands  where  the  owner  of  the  animals  has  no  right  to 
pasture  them,  and  thence  upon  the  railroad  track,  through  insuf- 
ficient fences,  the  owner  cannot  claim  to  be  reimbursed  his 
loss  by  reason  of  trains  running  down  his  stock.^ 

In  Michigan,  the  decisions  of  the  Courts  are  in  accord  with 
those  of  the  State  of  New  York.  The  necessity,  on  public  and 
private  grounds,  for  the  protection  afforded  by  fences  along 
both  sides  of  the  railroad,  being  perceived,  the  duty  of  so  keep- 
ing the  road  fenced  is  imposed  upon  the  company,  and  it  is 
primarily  liable  for  injuries  which  result  from  its  failure  to 
do  so.^ 

In  Minnesota,  it  has  been  held  that  the  common-law  rule,  that 
he  who  pastures  animals  must  fence  them  in,  applies  between 
the  owners  of  stock  and  railroad  companies ;  that  the  law  does 
not  require  railroad  companies  to  fence  in  their  roads,  and  that 
he  who  suffers  his  animals  to  run  at  large  does  so  at  his  own 
risk  of  having  them  stray  upon  railroad  tracks,  and  be  killed  by 
passing  trains.^ 

§  241.  Damage  to  live-stock  by  engines. — General  prop- 
ositions as  to  the  liability  of  railroad  companies  for  injuries  done 
to  animals  by  being  run  into  by  trains  may  be  deduced  from  the 
very  numerous  decisions,  to  the  effect  that  where  the  owner  of 
the  animals  is  in  fault,  or  it  does  not  appear  that  the  company 
was  bound  to  have  its  road  fenced,  the  corporation  is  not  liable, 
unless,  after  the  animals  are  discovered,  the  persons  running  the 
train  might,  by  the  exercise  of  reasonable  care,  have  avoided 
the  collision,^ 

The  obligation  to  make  and  maintain  fences,  both  at  common 
law  and  under  the  statutes,  applies  only  as  against  the  owners 
of  the  fields  through  which  the  road  runs,  and,  except  in  the 

1  Bemis  v.  C.  &  P.  R.  R.  R.  Co.  42  Vt.  378,  379;  Jackson  v.  R.  &  B.  R.  R.  Co.  25 
Vt.  150. 

2  B.  C.  &  E.  S.  R.  R.  Co.  21  Mich.  402. 

8  Locke  V.  St.  P.  &  Pac.  R.  R.  Co.  15  Minn.  350. 

4  Scott  u.W.  &  R.  R.  4  Jones'  Law,  482.  "Most  of  the  better  considered  cases 
certainly  adopt  tliis  view  of  the  subject,  and  some,  perhaps,  go  even  further  in 
favor  of  exempting  the  company  from  liability,  where  they  were  not  originally 
in  fault,  and  the  animals  were  exposed  to  injury  through  the  fault  of  the  owner, 
mediately  or  immediately."  (1  Rediield  on  Railways,  465;  I.  &  C.  R.  R.  v.  Cald- 
well, 9  Ind.  397. ) 


§241 


EAILROAD    FENCES.  302 


States  where  there  are  no  restrictions,  by  common-law  rule  or 
statutory  provisions,  against  cattle  running  at  large,  the  com- 
pany is  not  responsible  for  injury  to  animals  which,  being  with- 
out right  upon  lands  adjoining  the  road,  get  upon  the  track 
through  insufficient  fences.^ 

1  The  proposition  appears  to  be  generally  conceded  that  cattle,  running  at 
large  in  the  i^ublic  road,  are  to  be  deemed  improiierly  there ;  that  the  public  have 
but  an  easement  to  travel  over  it;  that  "  the  i^ublic  interest  in  a  highway  com- 
l^rehends  the  right  of  every  individual  to  jiass  and  repass  upon  it,  in  person  and 
with  his  proi)erty,  but  confers  no  right  to  use  it  as  a  &heei>walk,  or  pasture 
ground  for  cattle."  "On  this  strict  ground,  I  think  the  town  regulation,  assum- 
ing to  autliorize  cattle  to  rw?i  at  large,  was  wholly  void."  (Per  Beardsley,  C.  J. 
inT.  R.  n.  Co.  V.  Munger,  5  Denio,  255,  264;  15  Johns.  R.  453;  Wells  v.  Howell, 
19  Johns.  385;  Stackpoole  v.  Healey,  16  Mass.  33;  Holladay  v.  Marsh,  3  Wend. 
142-47.)  And  if  animals  escape  from  their  owner's  premises  into  the  public  road, 
"and  thus  get  ui^on  the  track  of  the  railway,  Avhere  it  intersects  the  highway, 
and  are  killed,  the  company  is  not  liable."  (1  Redfield  on  Railways,  465;  Towns 
V.  C.  R.  R.  Co.  1  Foster,  363;  Sharrod  v.  L.  &  N.  W.  R.  4  Exch.  580;  Halloran  v. 
N.  Y.  &  H.  R.  R.  Co.  2  E.  D.  Smith,  257.)  But  see  Convin  v.  N.  Y.  &  E.  R.  R. 
Co.  13  N.  Y.  44.  Section  44  of  the  general  railroad  act  was  under  consideration. 
The  language  is:  "Every  corporation  formed  under  this  act  shall  erect  and 
maintain  fences  on  the  sides  of  their  road,"  etc.  "  Until  such  fences  and  cattle- 
guards  shall  be  duly  made,  the  corj)oration  and  its  agents  shall  be  liable  for  all 
damages  which  shall  be  done  by  their  agents  or  engines  to  cattle,  horses,  or  other 
animals  thereon."  Some  oxen,  which  did  not  belong  to  the  owner  of  land  ad- 
joining the  railroad,  got  into  the  highway;  thence  upon  laud  through  which  the 
railroad  ran;  and  thence,  there  being  no  fences,  upon  the  track,  and  were  killed 
by  a  passing  train.  The  action  was  damages  by  the  owner  of  the  oxen  against 
the  comi^any.  It  was  held  that  the  design  of  the  section  was  to  require  railroad 
companies  to  inclose  their  track  within  substantial  fences,  and  to  guard  it  by  the 
ditches  called  cattle-guards  from  the  apjiroach  of  animals  wandering  on  the 
highways ;  and  that  one  method  jirovided  for  securing  that  object  is  the  provision 
charging  the  companies  with  damages  for  all  injuries  done  to  animals,  where 
they  have  disregarded  the  statute;  and  that  it  is  not  material  from  whence,  or 
under  what  circumstances,  the  animals  come  ujiou  the  track,  provided  they  are 
enabled  to  get  there  by  the  absence  of  feuces  or  cattle-guards. 

But  in  the  late  (1872)  case  of  Indianapolis  Etc.  R.  R.  Co.  v.  Harker,  38  Ind. 
557,  it  was  held  that  the  general  rule  is  that,  in  the  absence  of  some  statutory 
regulation  for  allowing  animals  to  run  at  large,  every  man  shall  fence  in  hisovvn 
stock.  Hence,  where  it  ajipeared  that  plaintiff  had  knowingly  permitted  his 
cattle  habitually  to  run  at  largo  in  the  immediate  vicinity  of  a  railroad,  where 
fencing  Avas  not  required,  it  was  held  that  lie  was  guilty  of  negligence;  and,  if 
his  stock  was  killed,  he  had  contributed  to  the  injury,  and  could  not  complain, 
there  being  no  proof  of  wantonness  in  the  management  of  the  train. 


303  POUND    LAWS    AND    ESTKAYS.  5  242 


CHAPTER  XXII. 

POUISTD  LAWS  AND  ESTRAYS. 

§  242.  Eight  to  distrain  animals,  damage  feasant. 

§  243.  The  common-law  rule  as  to  animals  found  doing  damage. 

§  244.  Pound  laws  in  the  LTnited  States. 

§  245.  The  constitutionality  of  pound  laws. 

§  246.  Proceedings  under  pound  laws,  actions  in  rem. 

§  247.  Pound  laws  must  be  strictly  followed. 

§  248.  Title  acquired  at  a  i)ound  sale. 

§  242.   The  right  to   detain  animals,  damage  feasant, 

was  one  which  existed  at  common  law,  and  it  was  recognized 
and  regulated  by  statute.  The  proceeding  was  always  purely 
remedial.  The  party  distraining  was  authorized  to  detain  the 
property  in  pledge  for  the  payment  of  his  damages.  By  seiz- 
ing it  at  the  time  and  on  the  premises  where  the  injury  was 
committed,  he  was  enabled  to  secure  redress  for  an  actual 
wrong  against  an  unknown  or  irresponsible  owner. 

If,  however,  the  animal  escaped  from  his  j)remises,  even 
though  he  was  in  fresh  pursuit,  his  right  of  distress  was  lost. 

The  party  making  the  seizure  was  required  to  have  the  dam- 
ages promptly  appraised  by  the  fence-viewers,  upon  a  view  of 
the  premises  and  the  examination  of  competent  witnesses  ;  they 
were  bound  to  certify  the  amount  of  damages  done,  and  there- 
after, within  twenty-four  hours,  he  Avho  had  taken  up  the 
beasts  was  required  to  put  them  into  the  public  pound,  where 
the  owner  could  find  and  retake  them  on  replevy,  or  by  paying 
costs  and  expenses. 

The  party  distraining  was  bound  to  give  notice  to  the  owner, 
if  known,  that  he  might  have  an  opportunity  to  so  replevy  or 
redeem  his  property. 

The  remedy  by  distress  was  cumulative,  and  satisfaction  ob- 
tained in  this  mode  was  a  bar  to  an  action  for  damages.^ 

i3\Voodeson,  226;  3  Bac.  Ahr.  Title  Distress,  ¥;  3  Black.  Com.  6;  2  Wait's 
Law  and  Pr.  778;  Golden  v.  Eldred,  15  Johns.  789. 


§  243  POUND   LAWS    AND   ESTRAYS.  304 

Practically,  at  common  law,  the  remedy  by  distress  was  of  but 
little  value,  as,  if  the  owner  of  the  animals  remained  obstinate, 
and  would  neither  redeem  nor  replevin,  it  became  no  remedy  at 
all,  unless  some  statute,  authorizing  the  sale  of  the  pledge,  in 
the  nature  of  an  execution,  effectuated  and  completed  the 
remedy.^ 

§  243.  The  common-law  rule  as  to  animals  found  dam- 
age feasant. — Under  the  common  law,  and  throughout  the 
United  States  where  that  system  prevails,  a  land-owner  was  per- 
mitted to  be  his  own  avenger  or  to  minister  redress  to  himself  by 
distraining  another's  cattle  damage  feasant.  Otherwise,  it  might 
be  impossible,  at  a  future  time,  to  ascertain  whose  cattle  they 
were  that  committed  the  trespass.  And  when  cattle  were  dis- 
trained for  that  cause,  it  became  the  duty  of  the  distrainor  to  put 
them  into  some  inclosure  denominated  as  a  pound,  which  might 
be  a  common  or  a  special  pound — overt  or  covert — and  there 
keep  them.  If  in  a  special  pound  covert,  as  in  the  impounder's 
barn,  he  was  bound  to  properly  feed  and  care  for  them.  When 
thus  impounded,  they  were  kept  in  the  nature  of  a  pledge  until 
satisfaction  was  made,  unless  the  owner  (^replegiavit)  took  back 
the  pledge  by  a  replevin  writ.  Thus  the  distress  was  the 
common-law  security .^ 

In  the  statutes  of  most  of  the  States  are  to  be  found  special 
provisions  and  enactments  upon  the  topic,  either  abrogating  the 
common-law  rules,  or  declaring  them  and  making  special  provis- 
ions for  their  application. 

As  a  ijencral  proposition,  where  a  remedy  existed  at  common 
law  and  the  statute  creates  a  new  remedy  in  the  affirmative  with- 
out a  negative,  express  or  implied,  a  party  may  still  seek  his 
remedy  at  common  law.     Particular  remedies  are  to  be  followed 

1  3  Bl.  Com.  p.  10.  "  And  so  the  law  still  continues  -with  regard  to  distresses 
of  beasts  taken  damof/e /eas(m<  and  for  other  causes  not  altered  by  act  of  Par- 
liament, over  which  the  distrainor  has  no  other  power  than  to  retain  them  till 
satisfaction  is  made." 

Ibid,  p.  14.  "This  kind  of  distress,  though  it  puts  the  owner  to  inconvenience, 
and  is,  therefore,  a  punisliment  to  him,  yet  if  lie  continues  obstinate  and  will 
make  no  satisfaction  or  pajonent,  is  no  remedy  at  all  to  the  distrainor."  (Piock- 
well  V.  Ncaring,  35  N.  Y.  317.) 

2  3  Black.  Com.  6,  13;  Cutts  v.  Hussey,  15  ifaine,  237. 


305  POUND    LAWS    AND   ESTRAYS.  §  244 

In  the  particular  cases  contemplated  by  the  law  created  for  them, 
but  in  other  cases  the  general  law  furnishes  the  remedy.^ 

§  244.  Pound  laws  in  the  United  States. — In  the  United 
States,  the  principles  of  the  common  law,  in  this  respect,  have 
been  either  recognized  by  the  Coiu'ts  or  put  into  more  practical 
eftect  by  legislative  enactments,  making  provision  for  the  sale  of 
animals  taken  doing  damage. 

The  jurisdiction  of  towns  over  their  highways  has  also  given 
rise  to  necessities,  more  or  less  imperative,  to  provide  against 
animals  running  at  large  in  them,  and  upon  the  statute  books  of 
the  respective  States  are  to  be  found  laws  providing  for  public 
pounds,  and  officers  whose  duty  it  is  to  take  up  and  sell  domestic 
animals  found  at  large  in  the  streets  or  roads. 

By  a  comparatively  early  case,^  it  has  been  held  that  the  com- 
mon-law rule  has  been  superseded  by  statutory  enactments  cov- 
ering the  ground  in  the  several  States,  and  that  in  America 
there  is,  practically,  no  such  thing  as  distress  of  beasts  damage 
feasant,  as  it  was  known  at  common  law  ;  such  appears  to  be  the 
tacit  admission  to  be  drawn  from  the  current  of  American  de- 
cisions, as  the  Courts  generally  ignore  the  English  rule,  and 
proceed  alone  upon  the  several  statutes  and  the  constitutions  of 
the  States  respectively. 

1  Boynton  v.  M.  M.  F.  Ins.  Co.  4  Mete.  21G;  Mosher  v.  Jewett,  63  Me.  88-9.  "  At 
commou  law,  cattle  could  be  Impounded  either  in  a  common  era  private  jjound, 
at  the  option  of  the  impounder.  The  statutes  of  New  Hampshire,  Vermont,  and 
Massachusetts,  respectively,  require  towns  to  erect  and  maintain  pounds,  but 
provide  tliat  creatures  must  be  impounded  in  the  public  pound,  if  there  be  any 
in  the  town,  otherwise,  in  the  barn  or  inclosure  of  the  person  taking  them  up. 
To  be  svire,  there  is  no  such  express  provision  in  the  statute  of  this  State,  but  it 
should  practically  receive  the  same  construction." 

Webber  v.  Classen,  35  Me.  28;  Thayer  v.  Arnold,  4  Mete.  591;  Mosher  v.  Jew- 
ett,  63  Me.  84.  "  In  a  town  in  which  there  is  no  pound  or  pound-keeper,  a  person 
may  legally  detain  in  his  custody  an  animal  taken  upon  his  premises  damage 
feasant,  and  has  a  lien  upon  the  animal  for  expenses  necessarily  incurred  in 
taking  suitable  care  of  it." 

By  statute,  the  owner  of  lands  trespassed  on  by  domestic  animals  may  sue  for 
damages  and  distrain;  the  same  law  provides  that  each  town  sliallkeep  a  pound 
and  have  a  pound-master,  (Eevised  Statutes  of  ]\Iaine,  1871,  p.  272  et  seq.)  and 
if  the  to\\Ti  fails  in  this  duty  the  citizen  does  not  lose  his  remedy,  l)ut  may  dis- 
train without  the  aid  of  the  public  pound-master. 

2  Cocker  t'.  Mann,  3  Mo.  475;  Walters  v.  Moss,  12  Cal.  538;  Commerford  v.  Du- 
puy,  17  Cal.  310. 

.     Faem— 20. 


§  245  POUND    LAWS    AND   ESTRAYS.  306 

Such  appears  to  be  the  inevitable  result  of  a  consideration  of 
the  relative  condition  of  things,  as  to  fencing,  in  the  parent 
country  and  the  States  of  the  Union ;  in  the  former,  the  uni- 
versal rule  has  been  to  maintain  inclosures  ;  in  the  latter,  inclosed 
fields,  certainly  at  the  time  when  constitutions  have  been  framed 
and  adopted,  were  exceptional. 

§  245.   The  constitutionality  of  pound  la-ws,  and  the  title 

to  the  animals  sold   under  them,  has,  however,  been  seriously 
questioned  in  many  instances. 

The  fault  most  frequently  complained  of  is  that  the  pound 
laws  generally  fail  to  make  provision  for  judicial  investigation 
of  the  question  whether  or  not  an  infringement  of  the  law  has 
occurred ;  the  pound-master,  finding  the  animal  at  large,  or  the 
owner  of  the  close  upon  which  the  animals  have  trespassed,  and 
are  found  damage  feasant,  give  notice,  it  is  true,  of  the  fact 
that  the  animals  are  taken  up  and  will  be  sold ;  the  owner  may 
replevin,  and  so,  taking  the  affirmative,  prove,  if  he  can,  that  no 
violation  of  the  law  has  occurred;  but  it  is  said  that  this  is  no 
more  in  consonance  with  the  general  provision  "  that  no  person 
shall  be  deprived  of  life,  liberty,  or  property,  Avithout  due  pro- 
cess of  law,"  than  it  Avould  be  to  compel  one  accused  of  crime 
to  remain  incarcerated  until  he  proved  his  innocence.^    But,  on 

1  Poppen  V.  Holmes,  44  111.  3G0.  "  To  ascertain  whether  a  penalty  has  been  in- 
curred or  not  is  a  proceeding  purely  judicial  in  its  character,  and  tlie  power  can- 
not be  exercised  by  the  pound-master  by  virtue  of  his  office ;  nor  can  a  town,  by 
its  by-laws,  authorize  the  pound-master  to  sell  property  without  a  ^"Mciicioi  as- 
certainment that  some  law  has  been  violated." 

Bullock  V.  Gamble,  45  111.  218;  "Willis  v.  Segris,  Ibid,  288:  Donovans.  Vicks- 
burg,  29  Miss.  247.  By  the  statement  of  the  case  it  apiiears  that,  by  the  charter 
of  the  city  of  Vicksburg,  it  was  authorized  to  make  ordinances  regulating 
streets,  etc. ;  that  it  passed  an  ordinance  providing  that  hogs  found  running  at 
large  should  be  taken  up  and  sold. 

"No  process  is  required  to  be  issued  for  the  seizure  or  the  sale,  nor  notice 
given  to  the  owner,  either  actual  or  constructive,  nor  is  there  any  opportunity 
given  to  him  to  appear  and  show  cause  why  the  ordinance  should  not  be  en- 
forced against  his  property.  The  entire  proceeding  is  summary,  and  calculated  to 
deprive  the  party  of  his  property  in  all  cases,  without  notice  or  trial,  and  liow- 
ever  clearly  he  might  liave  been  able  to  sliow  that  the  property  seized  was  with- 
in the  operation  of  the  ordinance. 

"  Upon  such  notice,  and  with  an  opportunity  allowed  liim  to  show  cause  against 
the  enforcement  of  the  ordinance  against  liim,  ho  miglit  liave  been  able  to  sliow 
that  the  hogs  liad  just  broken  from  his  inclosure  when  they  were  seized,  and  tliat 
he  had  not  had  time  to  retake  and  secure  them;  or  tliat  the  inclosure  had  been 


307  POUND   LAWS    AND   ESTRATS.  §  245 

the  other  side  of  the  question,  it  has  been  hchl  that  the  pro- 
visions of  statutes  authorizing  the  seizure  of  animals  trespass- 
ing on  private  property,  are  constitutional ;  that  such  statutes 
do  not  impose  penalties  for  the  trespass,  but  simply  prescribe  and 
fix  the  remedy  therefor ;  and  remedies  are  clearly  Avithin  the 
province  of  legislation.  The  temporary  seizure  and  detention 
of  property  authorized  by  such  statutes,  awaiting  judicial  ac- 
tion, are  not  violations  of  the  constitutional  provision — that  no 
person  shall  be  deprived  of  property  without  due  process  of 
law.i 

torn  down  for  necessary  purposes  during  the  raging  of  a  fire  in  the  city,  or  by  a 
tornado,  and  that  it  was  impossible,  under  the  circumstances,  to  confine  tliem 
again  before  they  were  seized ;  or  lie  might  have  been  able  to  show  that  they 
■were  turned  loose  by  the  procurement  of  the  parties  interested  in  having  them 
seized  and  sold."  Per  Mr.  Justice  Handy,  in  delivering  the  opinion  of  the 
Court. 

Rockwell  V.  Nearing,  35  N.  Y.  302.  In  which  was  considered  the  question— 
whether  stock  trespassing  could,  under  the  statute  ot  that  State,  be  taken  and 
sold  for  damages  done  by  them,  under  the  pound  laws,  and  it  was  held  that  the 
laws  permitting  them  to  be  sold  Avere  unconstitutional  so  far  as  they  author- 
ized the  seizure  and  sale,  without  judicial  process,  of  animals  found  trespassing 
within  a  private  inclosure.  (See,  also,  Taylor  v.  Porter,  4  Hill,  146-7;  The  Six 
Carpenters'  Case,  8  Coke,  290:  Sackrider  v.  McDonald,  10  Johns.  253;  Dumontu. 
Swift,  4  Denio,  320;  Doubleday  v.  Newton,  9  How.  71 ;  Shaw  v.  Kennedy,  2  Taylor, 
[X.  C]  158.) 

1  Hood  V.  ISIcCargan,  Supreme  Court  Cal.  29  Cal.  117.  Defendant  was  in  pos- 
session of  land  leased  by  plaintiff,  on  which  the  hogs  of  the  latter  trespassed 
and  destroyed  grain.  P>y  a  local  statute  for  the  county  of  Butte,  in  wliicli  the 
lands  lie,  (Stats.  Cal.  1857,  p.  lOG)  a  provision  is  made  that  if  hogs  be  found  tres- 
passing, the  owner  or  proprietor  of  the  premises  "may  take  up  and  safely  keep, 
at  the  expense  of  the  owner,  all  such  hogs  so  found  trespassing,"  and  giving  no- 
tice. Then,  if  the  owner,  within  five  days  after  notice,  does  not  pay  charges, 
expenses,  and  damages,  the  hogs  must  be  delivered  to  a  constable,  who  shall 
sell  them,  and  from  proceeds  pay  the  charges.  If  the  parties  cannot  agree  as  to 
amount  of  damages,  they  must  submit  them  to  arbitration,  and  if  the  owner  fails 
to  appear  or  to  select  arbitrators,  the  constable  must  appoint  them  for  him. 

Under  this  law,  and  also  a  claim  that  the  principle  of  the  common  law  is  in 
force,  that  animals  damarje  feasant  may  be  so  taken  up,  the  defendant  took 
and  shut  up  on  his  premises  the  hogs,  and  on  refusal  to  give  them  up  the  owner 
sought  to  get  them  by  replevin. 

The  controversy  became  narrowed  to  the  claim,  by  the  plaintiff,  that  the  act  of 
the  legislature  was  unconstitutional,  or  that  it  deprived  him  of  his  property 
without  due  process  of  law.  The  Coiirt,  by  Crockett,  J.,  said:  "I  discover  no 
plausible  groimd  on  which  the  first  three  sections  of  the  act  can  be  impugned 
as  obnoxious  to  any  constitutional  objection.  They  merely  authorize  hogs 
damage  feasant  to  be  impounded  by  the  OA\aaer  of  tlie  premises  until  the  damage 
they  iiave  committed  and  the  cost  of  keeping  them  shall  be  paid.  They  only 
create  a  lien  on  the  property  for  the  damages  and  costs,  vdth  a  right  to  the  pos- 
session until  the  lien  is  satisfied.    That  it  is  competent  for  the  legislature  to  con- 


§  246  POUND    LAWS    AND   ESTEAYS.  808 

§  246.   Proceedings  under  pound  laws — Actions  in  rem. 

— The  custom,  under  these  pound  laws,  of  selling  animals 
found  running  at  large  in  the  highways,  or  damage  feasant  in 
inclosed  fields,  has,  notwithstanding  these  decisions  already 
cited,  been  nearly  universal,  and  has,  by  usage,  if  not  abso- 
lutely by  decisions  of  the  Courts,  become  stare  decisis. 

That  such  is  the  case  is  recognized  in  the  later  decisions  to 
the  effect  that  it  is  no  objection  to  the  jsroceedings  that  personal 
notice  to  the  owner  or  other  claimant  of  the  animals  is  not  made 
necessary  by  the  law,  or  that  the  proceedings  are  to  some  ex- 
tent summary. 

The  statutoiy  provisions  are,  as  for  proceedings  in  rem.,  the 
penalty  or  forfeiture  attaching  to  and  being  a  lien  upon  the 
offending  animals.  The  owner  may  or  may  not  be  knoAvn  ;  the 
animals  are  not  in  the  actual  possession  and  custody  of  any 
one,  either  as  owner  or  otherwise ;  they  are  "  running  at  large." 

In  analogy  to  proceedings  in  other  cases  in  rem,  or  for  enforc- 
ing specific  liens,  or  upon  forfeiture  of  property,  the  legisla- 
tures have  provided  for  notice,  either  actual  or  constructive,  in 
such  form  and  for  such  length  of  time  as  has  been  thought 
reasonable  and  best  calculated  to  inform  the  owner  of  the  pro- 
ceedings, and  give  him  an  opportunity  to  be  heard  ;  and  the 
mode  and  manner  of  giving  the  notice  is  neither  unreasonable 
nor  unnecessarily  arbitrary. 

The  adoption  of  j)0und  laws  is  generally  local,  and  where  the 
necessities  of  towns  or  villages  are  such  as  to  demand  their 
adoption,  or  the  lands  ai^e  so  generally  inclosed  as  to  call  for 
the  passage  of  laws  for  distraining  animals  damage  feasant,  he 
who  keeps  stock  may  fairly  be  presumed  to  know,  when  they 
are  missing  from  their  range  and  watering-places,  that  the  pub- 

f  er  such  a  lien  on  cattle  taken  damage  feasant,  and  to  authorize  their  detention 
until  tlie  damages  and  expenses  are  paid,  was  decided  in  Cook  v.  Gregg,  40  N. 
Y.  Ml,  a  case  very  similar  to  the  present  one. 

"We  are  not  to  be  understood  as  intimating  an  opinion  as  to  the  constitution- 
ality of  the  act,  tliat  question  not  being  before  us."  ^ 

The  other  sections  refer  to  tlie  mode  of  assessing  damages.  The  case  of  Cook 
V.  Gregg,  40  N.  Y.  443,  goes  further,  and  holds  tliat  such  laws  are  constitutional  so 
far  as  they  provide  for  holding  the  animals  imtil  damages  are  paid;  and  to  the 
same  point,  see  Hall  v.  Clark,  19  Wend.  488;  Garabrant  v.  Vaughn,  2  B.  Monroe, 
327;  Fordr.  Ford,  3  Wis.  399;  Burrows  v.  Fassett,  30  Vt.  625;  Harriman  v.  Fi- 
field,  30  Vt.  341. 


809  POUND   LAWS   AND   ESTRAYS.  §  247 

He  pound  is  the  place  to  look  for  them,  and  his  action  of 
replevin  is  the  legitimate  response  which  he  should  make  to  the 
notice  of  impounding  as  to  an  order  to  show  cause  why  they 
should  not  be  sold.^ 

§  247.  Pound  laws  to  divest  ownership  of  property 
must  be  strictly  f  ollo"wed. — In  all  summary  proceedings  to  di- 
vest a  party  of  title   to  his  property,  the  law  authorizing  the 

1  Campbell  v.  Evans,  45  N.  Y.  35G,  in  which  the  decisions  hereinbefore  cited  are 
reviewed,  and  it  is  held  that  "  the  provisions  of  the  statute  as  to  the  seizure  of 
animals  running  at  large  in  the  public  highways  are  constitutional  and  valid, 
and  it  is  no  objection  to  the  proceedings  that  personal  notice  to  the  owner,  or 
other  claimants  of  the  ijroperty,  is  not  made  necessary  by  the  act,  or  essential 
to  the  jurisdiction  of  the  magistrate,  or  that  such  proceedings  are,  to  some  ex- 
tent, siimmary." 

So,  in  Cook  r.  Gregg,  4G  N.  Y.  439,  it  was  held  that  the  laws  authorizing  the 
impounding  and  sale  of  animals  found  damage  feasant  upon  an  inclosed  lield, 
are  constitutional.  (Pickard  r.  Howe,  12  Mete.  198;  Lea\-itt  v.  Thompson,  52  K 
Y.  62;  Dalby  r.Woolf,  14  Iowa,  228.)  But  in  Iowa,  to  entitle  a  plaintiff  to  recover 
for  damages  caused  by  defendant's  cattle,  while  rimning  at  large,  breaking  into 
the  close  of  plaintiff,  and  destroying  his  crops,  he  must  show  that  the  premises 
trespassed  upon  were  inclosed  by  a  lawful  fence.  The  common-law  rule,  that 
every  man  is  required  to  keep  his  cattle  upon  his  own  premises,  under  penalty  of 
answering  for  damages  for  injuries  committed  by  them  while  running  at  large, 
is  not  applicable  to  the  wants,  habits,  and  necessities  of  the  people  of  that  State, 
nor  in  harmony  with  the  genius  of  her  institutions,  and  therefore  has  not  been 
adopted  in,  and  is  not  the  law  of,  that  State.  Therefore,  one  who  there  sues  for 
a  tresjiass  by  cattle  on  his  land  must  show  that  he  maintained  a  sufficient  fence. 
(Frazier  v.  Nortinus,  34  Iowa,  82. )  And,  by  parity  of  reasoning,  it  appears  that, 
to  sustain  an  impovinding  of  animals  damage  feasant,  a  like  rule  should  apply. 

So,  in  California,  it  is  held  that  a  party  cannot  recover  for  injuries  done  by  cat- 
tle of  defendant  breaking  into  plaintiff's  close,  unless  the  land  entered  be  in- 
closed by  a  fence  of  the  character  described  by  the  statute,  or,  at  least,  by  an 
inclosure  equivalent,  in  its  capacity  to  exclude  cattle,  to  the  statutory  fence. 
(Commerf ord  v.  Dupuy,  17  Cal.  308. ) 

So,  in  Maine,  the  inclosure  must  be  by  "lawful  fences."  (Vide  Heath  v. 
Kicker,  2  Me.  408.)  "The  right  to  sell  beasts  taken  damage  feasant  is  given 
only  in  cases  where  the  injury  was  done  to  lands  inclosed  with  a  legal  and  suffi- 
cient fence."  (Eastman  v.  Eice,  14  Me.  419;  and,  to  the  same  effect,  Colden  v. 
Eldred,  15  Johns.  220;  and,  inferentially,  Grice  r.  Eandall,  23  Yt.  239.)  ""Wedo 
not  suppose  that  it  was  indispensable  to  the  defendant's  right  to  impound  crea- 
tures doing  damage  in  his  fields  that  the  fence  adjoining  the  higlm-ay  should 
have  been  legally  sufficient,  such  fence  being  expressly  excepted  in  tlie  revised 
statutes." 

In  Hine  r.  Munson,  32  Conn.  219,  it  was  held  that  the  owner  of  an  inclosure 
may  lawfully  impound  cattle  which  have  broken  into  it  from  an  adjoining 
inclosure,  through  tlie  insufficient  fence  of  the  owner  of  the  cattle,  althougli  his 
own  part  of  the  divisional  fence  was  also  insufficient.  See,  also.  Mills  r.  Stark, 
2  N.  H.  512,  and  also  Drew  r.  Spaulding,  45  N.  H.  472,  in  which  it  was  held  that, 
to  justify  a  distress  of  cattle  damage  feasant,  it  is  not  necessary  to  show  that  the 
land  is  inclosed,  except  as  against  an  adjoining  owner. 


§  248  POUXD    LAWS    AND    ESTRAYS.  310 

proceeding  must  be  strictly  pursued,  or  the  -whole  transaction 
■will  be  void.  In  all  cases  where  the  party  whose  rights  are  to 
be  affected  has  no  actual  notice  and  cannot  be  heard  in  support  of 
his  rights,  it  is  no  more  than  reasonable  and  proper  that  a  strict 
comijliance  with  the  requirements  of  the  law  under  which  the 
proceeding  is  conducted  shall  be  regarded  as  essentially  neces- 
sary to  the  divestiture  of  his  title. ^ 

Under  constitutional  governments,  the  citizen  can  only  be  de- 
prived of  his  property  by  a  judicial  decision,  upon  sufficient 
notice  and  reasonable  time  and  opportunity  being  afforded  to  be 
fully  heard  in  his  defense. 

In  all  departures  from  the  policy  of  this  general  rule  and 
policy,  the  Courts  have  been  rigid  in  demanding  a  strict  compli- 
ance with  the  requirements  of  the  statutes  authorizing  the 
proceeding  ;  and  hence,  it  results  that  title  to  property  can  be 
divested,  under  pound  laws,  only  by  strict  compliance  with  the 
laws.^ 

§  248.  The  title  acquired  at  a  pound  sale  depends  en- 
tirely upon  the  rigid  adherence,  by  the  officer,  to  the  provisions 
of  the  law  imder  which  the  animal  has  been  taken  and  the  sale 
been  made.^ 

1  Rex  V.  Cooke,  1  Covrper,  26.  ""WTiere  by  statute  a  special  authority  is  dele- 
gated to  particular  persons,  afEecting  the  property  of  individuals,  it  must  be 
strictly  pursued,  and  appear  to  be  so  on  the  face  of  their  proceedings."  This 
rule,  declared  more  than  a  centiiry  ago — 1774 — has  been  generally  recognized  in 
the  Courts  of  America  as  well  as'those  of  England. 

2  Coffin  tJ.  Fields,  7Cush.  358.  "It  is  well  settled  that  a  party  who  justifies 
the  taking  of  another's  property  under  legal  authority  or  process,  must  show 
that  he  has  acted  in  strict  conformity  with  the  requirements  of  the  law; 
otherwise,  he  will  be  considered  a  tressi^asser  ab  initio,  and  liable  to  an  action 
of  trespass  at  common  law." 

Purrington  v.  Loring,  7  Mass.  388;  Gilmore  f.  Holt,  4  Pick.  263;  Adams  v. 
Adams,  13  Pick.  387;  Smith  v.  Gates,  21  Pick.  55;  Clark  v.  Lewis,  34  HI.  417; 
Merritt  v.  O'Neal,  13  Johns.  477;  Colden  v.  Eldred,  15  Johns.  220. 

3  Clark  V.  Lewis,  34  111.  421.  "L'nder  this  ordinance,  the  pound-master  could 
have  no  authority  to  act,  unless  the  animal  was  running  at  large.  If  it  was  not 
running  at  large  when  taken  uj),  he  became  a  trespasser.  Were  he  to  impound 
an  animal  not  subject  to  such  a  proceeding,  the  act  being  unauthorized  and  ille- 
gal, a  purchaser,  at  his  sale,  would  acquire  no  title  to  the  property.  Having  no 
right  to  sell,  he  could  confer  no  title  to  the  purchaser."  The  mere  fact  that  he 
is  such  ofiicer  does  not  constitute  a  justification  for  seizing  or  selling  property, 
but  the  authority  to  do  so  must  be  shown. 

It  is  true  that,  in  Pickard  v.  Howe,  12  ^letc.  198,  it  was  held  that  "a  notice, 
given  by  a  field  driver  to  the  o^vner  of  the  cattle,  that  tliey  are  going  at  large 


311  POUND   LAWS   AND   ESTEAYS.  §  248 

Purchasers  at  pound  sales  must  be  prepared  to  submit  to  the 
same  rule  as  the  officer  who  takes  the  animal.  The  mere  fact 
that  the  pound-master,  or  other  officer  empowered  to  make  such 
sales,  has  sold  the  animals,  is  not  even  prima  facie  evidence  that 
his  proceedings  have  been  regular  in  taking  the  animals,  giving 
requisite  notice,  and  making  the  sale  ;  and  the  purchaser  is 
therefore  subjected  to  the  inconvenience  of  being  always  pre- 
pared to  show  strict  compliance  with  the  provisions  of  the  stat- 
ute by  the  officer  who  has  made  the  sale. 

on  the  public  highway,  is  prima  facie  evidence  that  they  were  so  at  large,  and 
puts  on  the  owner  the  burden  of  j^roving  the  contrary  " ;  but  the  further  reason- 
ing in  the  later  case  above  cited,  Clark  v.  Lewis,  comparing  the  purchaser  of 
animals  at  a  pound  sale  with  him  who  buys  i^roperty  at  a  sale  by  the  sheriff, 
under  execution,  appears  difficult  to  avoid.  The  sheriff's  sale  must  be  sustained 
by  the  judgment,  execution,  and  due  proceedings  thereunder.  Conceding,  how- 
ever, that  the  service  of  the  notice  upon  the  o'rnier  of  the  cattle  does  throw  upon 
the  owner  the  burden  of  proof  to  negative  the  assumption  that  the  animals  were 
liable  to  seizure,  still  the  purchaser  must  be  prepared  to  sustain  the  prima  facie 
case  made  by  the  service  of  the  notice,  and,  at  all  events,  he  must  be  prepared 
to  make  the  same  defense  as  the  officer  by  showing  strict  compliance  with  the 
requirements  of  the  law. 


Part  IV. 


PERSONAL  RELATIONS. 


315  MASTER   AND    SERVANT.  §  249 


CHAPTER  XXm. 

jyiASTER  AND  SERVANT. 

§  249.  The  relation  of  master  and  servant. 

§  250.  The  master  shoiild  guard  against  personal  injury  of  servant. 

§  251.  The  master  no  insurer  of  servant's  life  or  health. 

§  252.  The  master  may  regulate  hours  of  labor. 

§  253.  Servant  must  obtain  master's  leave  to  absent  himself. 

§  254.  Servant  bound  for  term  of  service  agreed  ujion. 

§  255.  Sickness  or  inability  of  servant  terminates  engagement. 

§  256.  By  misconduct,  servant  warrants  his  discharge  without  i^ay. 

§  257.  Misconduct,  to  warrant  discharge  without  pay,  must  be  serious. 

§  258.  Master  must  pay  for  term  agreed  u^Don,  when. 

§  259.  The  contract  for  payment  of  wages. 

§  260.  If  the  servant  fall  sick  or  become  disabled. 

§  261.  The  master  has  a  charge  of  the  servant's  health. 

§  262.  Master  not  bound  to  give  a  "  character." 

§  263.  Damages  for  enticing  away  servant. 

§  264.  Liability  of  master  on  contracts  by  servant. 

§  265.  The  master's  liability  for  injuries  by  servant. 

§  266.  The  master's  responsibility  ends,  when. 

§  267.  Servant  should  reimburse  master  for  losses. 

§  249.  The  relation  of  master  and  servant  is  that,  by 
contract,  the  one  is  bound  to  render  service,  and  the  other  to 
pay  the  stipulated  consideration  or  price  therefor.  On  the  part 
of  the  person  employed,  if  it  be  for  such  service  as  demands 
special  skill  or  peculiar  information,  he  covenants  that  he  is 
possessed  of,  and  in  his  employer's  service  will  properly  use, 
such  skill  or  aptitude  as  the  circumstances  and  requirements  of 
his  employment  demand.  The  servant  is  also  bound  to  be  dili- 
gent and  attentive  to  the  duties  of  his  service,  and  habitual 
neglect  or  absence,  occasioning  loss  or  injury  to  the  master,  will 
justify  a  dismissal,  although  it  be  neither  willful  nor  contuma- 
cious.^ 

The  contract  by  the  servant  is  to  obey  all  proper  and  reason- 
able commands,  in  the  line  of  his  employment,  given  to  him  by 
his   employer ;  if,  therefore,  such  a  command  be  disobeyed  or 

12  Kent's  Com.  258;  2  Story  on  Contracts,  Sec.  962. 


§  250  MASTER   AND    SERVANT.  316 

willfully  neglected,  it  is,  on  the  part  of  the  employee,  a  breach 
of  the  contract,  for  which  he  may  be  discharged,  or  held  liable 
for  damages,  or  both.  But  the  command  must  be  just  and 
reasonable,  and  Avithin  the  fair  scope  of  the  employment,  and 
the  servant  is  not  held  to  the  performance  of  a  service  in  which 
there  is  personal  risk  or  danger  to  himself,  and  he  may  reason- 
ably decline  to  take  any  risk  of  personal  injury  or  pecuniary 
responsibility.-^ 

§  250.  The  master  must  guard  against  personal  injury 
of  servant. — It  is  tlie  duty  of  the  master  not  only  to  properly 
provide  for  his  servant  the  necessary  food  and  sleeping-place  to 
keep  him  in  good  health,  but  he  also  has  such  a  charge  over  his 
safety  that  he  is  bound  to  protect  him  from  accidents  by  such 
means  as  an  ordinarily  prudent  man  would  avail  himself  of  for 
that  purpose. 

It  is  not  the  business  of  the  servant  to  know,  nor  has  he 
always  the  means  of  ascertaining,  whether  animals  intrusted  to 
his  care  are  vicious  or  gentle,  or  whether  fanning  or  threshing 
machinery  with  which  he  is  employed  is  in  a  condition  safely  to 
be  used  —  certainly  not  at  the  commencement  of  the  employ- 
ment, and  before  the  servant  has  had  fitting  opportunity  to 
inform  himself  in  the  premises. 

Even  where  the  servant  has,  by  handling  and  use,  familiarized 
himself  with  the  habits  and  condition  of  the  animals  and  ma- 
chinery, it  may  well  be  doubted  whether  the  responsibility  of 
deciding  whether  they  shall  be  handled  or  used  does  not  rest 
with  the  master.^ 

1  Priestly  v.  Fowler,  3  Slees.  &  Wels.  R.  G.  Bnt  mere  inconvenience  to  the 
employee  does  not  justify  him  in  refusing  obedience  to  a  command  in  itself  rea- 
sonable and  proper;  and  in  a  case  where  the  master  directed  his  servant  to  leail 
some  horses  to  a  marsh  wliich  was  a  mile  distant,  and  it  was  the  servant's  din- 
ner hour,  and,  his  dinner  being  ready,  he  refused  to  go  until  after  he  had  dined,  it 
was  held  to  be  no  such  unreasonable  demand— that  he  should  go  at  once,  even 
at  the  sacrifice  of  his  meal — as  justified  a  refusal.  (Spain  v.  Aruott,  2  Stark. 
256;  Read  v.  Dansmore,  !)  Car.  &  Payne,  588.) 

2  Porter  r.  Hannibal  &  St.  J.  R.  R.  Co.  OO  INIo.  160.  "  The  fact  that  a  servant, 
by  the  exercise  of  ordinary  diligence,  could  have  known  of  the  defects  in  the 
machinery  provided  for  his  use  by  the  master,  will  not  bar  a  recovery  against 
the  master  for  injuries  to  the  servant  occasioned  by  sucli  defects." 

"It  is  not  the  business  of  the  servant,  nor  lias  he  the  means  of  ascertaining, 
whether  the  machinery  or  structure  upon  which  he  is  employed  to  operate  is 


317  MASTER   AND    SERVANT.  §  251 

The  general  rule  applicable  In  the  premises  appears  to  be, 
where  injuries  to  a  servant  are  owing  to  improper  appliances  to 
do  the  work,  or  imperfections  in  such  appliances  or  machinery 
used  in  the  prosecution  of  the  work,  the  condition  of  which,  by 
reasonable  and  ordinary  care  and  prudence,  the  master  might 
know,  and  not  to  the  lack  of  care  or  prudence  of  the  servant, 
the  master  would  be  liable.  That  the  legal  implication  is  that 
the  master  will  adopt  suitable  instruments  and  means  with 
which  to  carry  on  his  business,  and  if  he  fail  to  do  so,  he  is 
guilty  of  a  breach  of  duty  under  his  contract,  for  the  conse- 
quences of  which,  in  justice  and  sound  reason,  he  should  be  held 
responsible. 

§  251.  The  master  not  insurer  of  servant's  life  or 
health. — The  master,  however,  does  not  become  an  insurer  or 
guarantor  of  the  life  or  health  of  the  servant,  nor  covenant  to 
guard  him  against  all  accidents.  The  contract  of  employment 
is  made  In  view  of,  and  with  reference  to,  the  proposition  that 
the  servant  is  a  rational  creature,  capable  of  judging  and  acting 
with  reference  to  his  own  safety.  The  contract  being  made 
upon  that  hypothesis,  the  owner  may  rely,  to  the  extent  of  the 
exercise  of  ordinary  prudence,  and  the  exercise  of  reasonable 
care  against  dang-er  from  the  vices  of  animals,  or  the  use  of  de- 
fective  machinery,  when  the  danger  Is  obvious,  or  where  the 
employee,  by  the  exercise  of  reasonable  care,  might  have  ob- 
tained knowledge  of  It.  It  is  only  where  the  master  has  knowl- 
edge, or,  under  the  circumstances,  ought  to  have  knowledge,  of 
latent  risks  of  which  the  employee  has  no  knowledge,  or  obvious 
means  of  knowledge,  that  the  employer  Is  liable  to  his  servant 
for  Injuries  caused  by  such  risks.  If  both  were  cognizant  of 
the  risk,  there  can  be  no  recovery  by  the  servant  against  the 
master.  Nothing  in  the  ordinary  contract  for  labor  would  jus- 
tify the  servant  In  assuming  risk  to  his  life  or  health,  upon  the 
responsibility  of  the  master ;  and  If  the  contract  were  extraor- 
dinary. In  that  the  risk  was  contemplated,  there  would  either  be 

defective.  It  is  the  duty  of  the  employer  to  furnish  these  appliances,  and 
if  he  fails  to  do  so  he  is  responsible  for  injuries  resulting  from  defective  ma- 
chinery." (Ibid;  Gibson  v.  P.  R.  R.  Co.  4(i  Mo.  103;  Harper  v.  R.  R.  Co.  47  Mo. 
587;  Shearman  &  Red.  on  Keg.  102;  Brothers  v.  Cartter,  52  Mo.  375.) 


§  252  MASTER   AND    SERVANT.  318 

no  guarantee  against  it,  or  a  special  one  in  the  agreement  of 
hire. 

If  neither  knew  of  the  risk,  and  it  was  existent,  the  owner  is 
liable,  when,  by  ordinary  prudence  and  inquiry,  he  might  have 
become  aware  of  it ;  but  the  servant  cannot  willfully  or  negli- 
gently close  his  eyes  to  palpable  danger,  and  hold  the  employer 
liable  for  results  to  him  from  it.  He  must  use  such  care,  under 
the  circumstances,  as  a  man  of  ordinary  pi'udence  would  do 
about  his  own  business  ;  and  if,  by  the  exercise  of  such  care,  the 
accident  could  have  been  avoided  by  the  servant,  the  master  is 
not  liable.^ 

§  252.  The  master  may  regulate  the  time  for  com- 
mencement of  and  quitting  work,  due  regard  being  had  to  the 
customary  hours  for  labor  and  season  of  the  year ;  ^  the  con- 
tract to  labor  is  always  made,  however,  with  reference  to  the 
employment,  and  the  master  is  not  justified  in  such  unreason- 

1  Porter  v.  HanniToal  &  St.  J.  R.  R.  Co.  May,  1875,  60  Mo.  IGO,  states  the 
proposition  broadly,  that  the  fact  that  the  servant  could,  by  the  exercise  of 
ordinary  diligence,  have  become  aware  of,  and  guarded  himself  from,  danger, 
does  not  relieve  the  master  from  liability. 

There  is  an  apparent  conflict  between  this  case  and  the  one  of  Wag  v.  R.  R. 
Co.  decided  at  April,  1875,  Term  of  Supreme  Court  of  Illinois,  in  which  it  was 
held  that  "where  an  employee,  by  the  exercise  of  reasonable  care,  might  have 
knowledge  of  imperfections  in  machinery  about  which  he  is  employed,  and  con- 
tinues in  his  master's  service  without  objection,  he  cannot  sustain  an  action  for 
an  injury  caused  by  such  imperfection." 

The  rule,  as  given  in  the  latter  case,  seems  the  one  most  in  consonance  with 
the  spirit  of  the  bulk  of  the  decisions.  The  Coiu-ts  have  not  gone  to  the  length 
of  making  the  master  an  insurer  of  the  servant  against  injury  from  the  indicated 
cause.  If  the  owner  know  of  the  danger,  or,  under  the  circumstances,  ought  to 
have  been  aware  of  it,  and  fail  to  inform  the  servant,  he  is  liable ;  but  if  both 
be  cognizant  of  the  risk,  there  can  be  no  recovery ;  and  so  it  is  if  neither  knew 
of  it,  unless,  by  ordinary  care  and  caution,  the  emjiloyer  might  have  known  of 
it.  And,  on  the  other  hand,  the  servant  lias  no  right  to  charge  the  master  Avith 
the  consequences  of  his  own  heedlessness,  if,  under  the  circumstances,  a  man  of 
ordinary  care  and  prudence,  occupying  the  same  ijosition,  ought  to  have  taken 
notice  of  the  risk.  (Gibson  v.  R.  R.  Co.  4G  Mo.  1G3;  Paulmier  v.  R.  R.  Co.  34  K 
J.  151;  Devitt  v.  R.  R.  Co.  50  Mo.  302;  R.  R.  Co.  v.  Barbour,  5  Ohio  St.  541;  Kroy 
V.  R.  R.  Co.  32  Iowa,  357;  Davis  v.  R.  R.  Co.  20  Mich.  105;  Thayer  v.  R.  R.  Co.  22 
Ind.  20;  Frazier  v.  R.  R.  Co.  38  Penn.  St.  104;  R.  R.  Co.  v.  Love,  10  Ind.  556; 
Wharton  on  Negligence,  217;  Shearman  &  Redlield  on  Negligence,  87, 94;  Addi- 
son on  Torts,  397;  McGlyn  v.  Broderic,  31'  Cal.  376;  Huddleston  v.  Lowell  M.  S. 
Co.  106  Mass.  382.) 

2  Turner  w.  Mason,  14  Mees.  &  Welsh.  112.  "Prima  facie,  the  master  is  to 
regulate  the  time  when  his  servant  is  to  go  out  from  and  return  to  his  home." 


319  MASTER   AND    SERVANT.  §§  253-4 

able  demands  as  to  work-hours  as  could  not  reasonably  be  sup- 
posed to  have  been  understood  by  the  employed  by  the  hirer  at 
the  time  when  the  contract  was  made,  inasmuch  as  there  can 
have  been  no  contract  unless  the  minds  of  both  parties  have 
met  upon  a  fair,  mutual  understanding  of  the  agreement  en- 
tered upon.i 

§  253.  The  servant  can  only  leave  home  with  the  mas- 
ter's consent. — The  servant  is  not  permitted  to  be  the  judge  of 
when  he  may  be  required  ;  his  contract  is  generally  to  give  his 
time  absolutely  to  his  employer,  and  hence  he  should  not  assume 
that  he  may  properly  absent  himself  from  his  employer's  prem- 
ises, or  go  about  without  leave  of  absence,  except  under  extra- 
ordinary circumstances,  as  where  there  is  an  infectious  disease 
in  the  house  or  immediate  neighborliood,^  or  where  he  reason- 
ably apprehends  danger  to  himself,  or  violence  to  his  person, 
from  the  master ;  and  if  the  servant  ask  for  and  fail  to  obtain 
leave  of  absence,  it  is  not  a  Justification  of  his  taking  leave  that 
he  provide  another  person,  in  his  absence,  to  do  his  work.'^  But 
a  trivial  assumption  of  authority  in  that  respect,  and  where  the 
absence  of  the  employee  worked  no  injury  to  the  master,  has 
been  held  excusable.^ 

§  254.  The  servant  is  bound  for  the  full  term  agreed 
upon. — As  to  the  term  of  service,  the  general  rule  is  that  a 
servant  is  bound  to  perform  the  service  according  to  his  agree- 
ment. If  the  agreement,  therefore,  be  for  a  definite  term,  he 
must  serve  throughout  the  whole  of  it,  and  he  is  not  justified  in 
quitting  before  rendering  the  full  and  entire  service  vtdiich  he 
has  contracted  to  perform.  He  must  serve  the  whole  term,  or 
he  will  be  entitled  to  no  part  of  his  wages.  This  rule  remains 
in  force,  even  where — an  entire  term  being  stipulated  for — the 
amount  of  compensation  agreed  upon  is  at  a  specified  rate  for 

1 1  Parsons  on  Contracts,  p.  8.  "The  essentials  of  a  legal  contract  are :  thirdly, 
the  assent  of  the  parties,  without  which  there  is  in  law  no  contract."  (Ibid,  475. ) 
"There  is  no  contract  unless  the  parties  thereto  assent  to  the  same  thing  in  the 
same  sense." 

2  Turner  v.  Mason,  14  Mees.  &  Welsh.  112. 

8  Ihid. 

*Callo  V.  Brouncker,  4  Car.  &  Payne,  518;  Cassons  v.  Skinner,  11  Mees.  & 
Welsh.  161. 


§  255  MASTER    AND    SERVANT.  320 

aliquot  parts  of  that  term,  or  Is  payable  in  installments  at  cer- 
tain dates  which  are  to  occur  during  the  term  ;  as  where  the 
employment  was  for  a  year  at  a  specified  rate  of  wages  by  the 
month,  week,  or  day,  payable  at  stipulated  times,  the  servant 
having  agreed  to  work  a  year,  such  an  arrangement  for  pay- 
ment being  perfectly  consistent  with  the  general  terms  of  the 
contract.^ 

§  255.  Sickness  or  disability  of  servant  ends  the  en- 
gagement, and  the  master  must  pay  for  the  service  rendered. 
The  contract  between  master  and  servant  is  subject  to  the  vicissi- 
tudes of  life  and  health,  and  if  it  should  occur  that  a  servant 
dies  within  the  term,  his  personal  representative  would  be  en- 
titled to  receive  from  his  employer  payment  for  the  service 
actually  rendered,  what  it  was  reasonably  worth,  and  the  rate 
stipulated  for  the  whole  term  might  be  regarded  as  a  means  ol 
ascertaining  the  amount  due,  as  a  pro  rata  compensation  for  the 

1  Story  on  Contracts,  Sec.  9G2;  Hawkins  r.  Gilbert,  19  Ala.  54;  Oltnsteacl  v. 
Beale,  19  Pick.  528.  "If  the  plaintiff,  having  agreed  to  work  for  the  defendant 
for  a  definite  period,  voluntarily  leaves  the  defendant's  service  without  any 
fault  on  the  part  of  the  defendant,  and  without  his  consent,  hefore  the  expira- 
tion of  the  term,  he  cannot  recover  either  on  the  express  contract  or  on  a  quan- 
tum meruit  for  the  labor  actually  performed  by  him."  (Faxon  v.  Mansfleld,  2 
Mass.  147;  Taft  v.  Montague,  14  Mass.  282;  Phelps  v.  Sheldon,  13  Pick.  50;  Stark 
f.  Parker,  2  Pick.  267;  Thayer  r.  VVadsworth,  19  Pick.  o49;  Marsh  v.  Ruleson,  1 
Wend.  614;  Jennings  r.  Camp,  13  Johns.  94;  McMillan  v.  Vanderliii,  12  Ibid, 
l(-5;  Reab  v.  Moore,  19  Ibid,  337;  Lantry  v.  Parks,  8  Cowen,  63;  St.  A.  Str.  v. 
Wilkins,  8  Vt.  54;  Davis  v.  Maxwell,  12  Met.  286;  Robinson  v.  Hall,  3  Ibid,  301; 
Wenn  v.  Southgate,  17  Vt.  355;  Hunt  v.  Otis  Co.  4  Met.  465;  Spain  v.  Arnott,  2 
Stark.  256:  Lilley  v.  Elwin,  11  Q.  B.  755;  Swift  r. Williams,  2  Carter,  365.) 

Beach  v.  Mullin,  34  N.  J.  Law,  343;  Ibid,  344.  "The  entirety  of  a  contract 
does  not  depend  upon  its  subject-matter.  An  entire  contract  is  one  the  consid- 
eration of  which  is  entire  on  both  sides.  Whenever  there  Is  a  contract  to  pay 
a  gross  sum  for  a  certain  definite  consideration,  the  contract  is  entire,  and  not 
apportionable  either  in  law  or  equity."  (Story  on  Contracts,  Sec.  22. )  "A  con- 
tract to  pay  sixteen  dollars  for  a  month's  service  is  as  entire  in  its  consideration 
as  is  a  contract  to  pay  a  certain  siun  for  a  single  chattel,  or  for  a  specified  num- 
ber of  chattels." 

In  this  suit,  a  claim  was  made  for  services.  The  contract  was  for  one  month's 
services,  as  a  domestic  in  a  family,  from  July  19th  to  August  19th,  at  sixteen 
dollars  per  month.  For  good  cause,  the  plaintiff  was  discharged  on  the  14th  of 
August,  and  sued  for  her  Avages.  The  ruling  of  tlie  Court  of  last  resort  was, 
and  tlie  decision  was  as  above  stated,  to  the  effect  that  the  contract  was  entire, 
and,  to  recover,  the  plaintiff  must  show  her  ability  and  willingness  jiroperly  to 
carry  out  tlu;  contract;  that  it  was  entire,  and  not  severable,  and  that  the  hiring 
was  for  a  month,  and  not  such  part  of  a  month  as  the  servant  might  choose  to 
work. 


321  MASTER   AND    SERVANT.  §  255 

service  rendered,  although  that  would  not  properly  be  deemed 
an  arbitrary  mode  of  ascertaining  it,  as  it  might  well  occur  that 
the  service  throughout  the  term  would  be  of  greater  compara- 
tive value  than  for  a  portion  of  it;  and,  on  the  other  hand, 
it  might  be  that  the  months  for  which  service  was  rendered  had 
a  general  price  and  value  for  service,  higher  than  those  of  the 
term  Avhich  remained ;  and  so  if  the  servant  be  injured,  meet 
with  an  accident,  or  become  sick  or  disabled  from  performino- 
the  service,  a  like  rule  applies,  and  he  may  recover  for  the  por- 
tion of  the  term  he  has  actually  served,  as  the  disability  is  from 
no  violation  or  fault  of  his,^  unless  it  should  apjiear,  from  the 
peculiar  circumstances  of  the  case,  that  the  entire  performance 
constituted  the  consideration  of  the  contract.^ 

1  Fenton  v.  Clark,  11  Vermont,  557,  560.  "The  position  that,  if  A  contract 
with  B  to  labor  for  him  a  given  time  and  for  a  stated  consideration,  and  A  vol- 
untarily leaves  the  service  of  B  before  the  expiration  of  the  time,  there  can  be 
no  recovery,  is  sustained  by  numeroiis  adjudged  cases.  There  can  be  no  re- 
covery in  such  case  upon  a  quantum  meruit,  it  is  said,  because  the  contract  is 
entire,  and  its  performance  is  a  condition  precedent."  But  "  in  cases  where  the 
act  of  God  renders  the  performance  absolutely  imijossible,  the  contract  is  dis- 
charged, according  to  the  maxim,  ^impotentia  excusat  legem.'  "  And  upon  this 
reasoning  it  was  held,  that  ujion  this  contract  to  work  four  specified  months,  and 
receive  no  i)ay  till  he  had  worked  the  four  months,  "still,  if  he  is  i^revented 
from  completing  the  four  months'  labor  by  reason  of  sickness,  he  may  recover 
pro  rata  for  the  services  upon  a  quantum  meruit." 

Dickey  r.  Linscott,  20  Me.  453.  "Where  a  party  agreed  to  work  for  another  on 
his  farm  for  seven  months,  as  a  farm-hand,  at  5?13  per  month,  and  in  making  the 
contract  it  was  estimated  that  this  service  would  extend  through  haying-time, 
but  the  workman  fell  sick,  it  was  held  that,  in  a  contract  for  the  performance 
of  manual  labor  for  a  stipulated  time,  requiring  strength  and  health,  it  must  be 
understood  to  be  subject  to  the  imj)lied  condition  that  strength  and  health  re- 
main. An  actual  inability  to  perform  the  labor,  arising  from  sickness  at  the 
commencement  of  the  time,  although  it  may  not  continue  during  the  whole 
term  contracted  for,  excuses  the  performance." 

Naterston  u.  Ship  Hazard,  Bee.  R.  441;  Fuller  v.  Brown,  11  Met.  440;  Shearer 
V.  lyiorse,  20  Vt.  G20.  But,  from  the  application  of  principles,  it  results  that 
these  enumerated  causes,  excusing  the  enforcement  of  a  rule,  are  exceptional, 
and  he  who  relies  upon  the  exception  must  take  the  afiirmative  thereon,  and 
make  a  case  fairly  within  the  exception,  in  good  faith. 

2  1  Story  on  Contracts,  Sec.  962;  Cutter  v.  Powell,  6  T.  R.  320.  And  so,  also, 
it  has  been  held,  an  infant  may  avoid  his  contract  and  recover  upon  a  qucntum 
meruit,  if,  upon  taking  into  consideration  all  the  circumstances,  his  services  ap- 
pear to  be  worth  anything.  (1  Story  on  Contracts,  Sec.  G92;  Moses  v.  Stevens,  2 
Pick.  332;  Vent  v.  Osgood,  19  Pick.  572;  AVhitmarsh  v.  Hall,  3  Denio,  375;  Med- 
bury  V.  Watson,  7  Hill,  110;  Judkins  v.  Walker,  17  Me.  38;  Bishop  v.  Shepherd, 
23  Pick.  492:  Thomas  v.  Dyke,  11  Vt.  273;  Corpe  r.  Overton,  10  Bing.  252;  Moul- 
ton  V.  Trask,  9  Met.  557.) 

Farm— 21. 


§  256  MASTER    A^D    SERVANT.  322 

§  256.  By  misconduct,  the  servant  warrants  his  dis- 
charge -without  payment. — If  a  just  and  reasonable  command 
of  the  employer,  within  the  scope  of  the  employment,  be  dis- 
obeyed by  the  servant  willfully,  or  he  be  habitually  negligent  in 
the  discharge  of  his  duties,  so  that  he  cause  thereby  injury  or 
loss  to  his  master,  although,  in  so  acting,  the  servant  is  neither 
contumacious,  nor  intends  to  cause  damage  by  his  conduct,  the 
master  may  dismiss  him,  and  he  is  not  bound  to  pay  for  such 
service  as  may  have  been  rendered  by  the  servant.  His  contract 
is  to  perfonn,  faithfully,  the  service  for  which  he  is  engaged, 
and  not  only  the  master,  but  the  public  at  large,  is  interested ; 
inasmuch  as  it  is  important  that  the  use  of  capital,  in  such  man- 
ner as  to  employ  the  labor  of  those  who  have  but  that  to  live 
uj)on,  should  be  encouraged  ;  and  no  penalty  can  be  devised  so 
efficient  to  induce  the  fulfillment  of  his  part  of  the  contract  by 
the  laborer  as  the  loss  of  his  wages. 

If  the  conduct  of  the  servant  is  immoral,  indecent,  or  in  any 
manner  dishonest  in  relation  to  his  master's  business,  or  if  he  be 
guilty  of  any  criminal  offense  against  the  law,  though  not  inju- 
rious to  his  master's  interests,  or  if  he  use  abusive  language 
against  his  master,  or  quarrel  with  his  fellow-servant,  or  in  any 
manner  abuse  his  position  to  injure  his  master,  he  may,  by  the 
master,  be  dismissed  ;  and  such  dismissal  is  of  the  same  effect  as 
though  he  voluntarily  left  unfulfilled  the  term  of  service  for 
which  he  had  contracted,  and  he  ought  not  to  be  permitted  to 
recover  on  quantiun  meruit  for  the  portion  of  the  term  Avhich  he 
has  served.  The  termination  of  the  service,  the  breach  of  the 
contract,  is  ascribable  to  the  servant's  conduct,  and  he  cannot 
compel  his  discharge,  and  claim  the  benefit  of  it.^ 

1 1  Story  on  Contracts,  062,  q,  r,  and  s;  Cussons  v.  Skinner,  11  Mees.  &  "Welsb. 
161;  Arding  v.  Lomax,  28  Eng.  Law  and  Eq.  543,  in  which  it  was  held  that  if  a 
servant  agrees  to  use  liis  best  endeavors  to  jiromote  his  master's  interests,  a 
neglect  to  do  so  is  a  good  cause  for  dismissal.  So  in  Robinson  v.  Hindman,  3 
Esp.  235,  which  was  an  action  for  a  month's  wages  by  a  servant  against  his  em- 
ployer, on  the  ground  that  he  had  been  discharged  without  warning;  and,  in  de- 
fense, the  employer  showed  that  plaintiff  had  been  negligent  in  his  conduct, 
frequently  absent  when  needed  T)y  his  master,  and  that,  contrary  to  the  natiiral 
requirements  of  the  service  for  wliich  lie  had  engaged,  lie  often  had  slejit  out  of 
his  employer's  house  of  nights;  it  was  held  that  he  could  not  recover  because  of 
his  misconduct.  To  same  effect,  see  Callo  v.  Brounacker,  4  Car.  &  Payne,  518; 
Baillir;  v.  Kell,  4Bing.  N.  C.  638;  Turner?;.  Robinson,  0  Car.  &  Payne,  15;  Libhart 
V.  AVood,  1  Watts  &  Serg.  265;  Acton  v.  Atkin,  4  Car.  &  Payne,  208;  Keamer  v. 
Holmes,  6  La.  An.  373;  Byrd  r.  Boyd,  4  McCord,  246. 


323  MASTER   AND    SERVANT.  §§  257-8 

§  257.  Misconduct,  to  -warrant  discharge  without  pay, 
must  be  serious. — The  disobedience,  or  misconduct  in  other 
respects,  must  be  serious,  and  of  a  character  so  grave  as  to  ren- 
der submission  thereto  practically  inconsistent  with  the  con- 
tinued existence  of  the  relation,  between  the  parties,  of  master 
and  servant ;  a  trivial  disobedience,  or  a  temporary  absence 
from  his  duties  by  the  servant,  or  occasional  sulkiness  and  inso- 
lence of  manner,  not  amounting  to  positive  breaking  of  the 
contract  of  service,  have  been  held  insufficient  to  justify  a  dis- 
missal.^ 

§  258.  Master  must  pay  for  term  agreed  on,  when.  — 

The  duties  of  the  master  toward  his  servant  are  such  that  he 
must,  if  the  contract  be  for  a  term,  pay  for  the  whole  of  it, 
unless,  voluntarily  or  by  his  misconduct,  the  servant  anmd  the 
contract ;  unless  the  master,  having  broken  the  contract,  can 
show  that  the  servant  entered  into  other  employment,  and  so 
did  not  lose  his  time  by  the  breach,  as  it  could  not  reasonably 
be  claimed  by  the  servant  that  he  should  be  paid  twice  for  the 
employment  of  the  same  time. 

There  appears  to  be  a  distinction,  in  this  respect,  between  the 
rights  of  the  parties  to  terminate  the  relation,  and  the  reason  for 
the  distinction  becomes  obvious  upon  consideration. 

The  whole  capital  employed  by  the  servant  is  his  labor.  If,  at 
the  wages  agreed  upon,  he  is  immediately  employed  by  another 
person,  it  is  impossible  that  he  should  be  injured  by  his  dis- 
charge ;  and  the  breaking  of  the  contract  by  the  master  must 
be  damnum  absque  injuria  as  to  the  servant,  while  it  by  no 
means  results  that,  if  the  employee  leaves  his  master's  work, 
the  only  loss  to  the  employer  will  be  the  deprivation  of  the  serv- 
ice— the  mere  loss  to  him  of  the  servant's  time.  Serious  an- 
noyance, and  loss  to  him  whose  capital  is  employed  in  the  busi- 
ness for  which  the  servant  is  hired,  is  liable  almost  inevitably  to 
result  from  interruption  of  the  labor ;  even  if  a  new  man  is 
obtainable    at   once,   some    derangement    of    the    work    almost 

1 1  Story  on  Contracts,  Sec.  962p ;  Callo  v.  Brounacker,  4  Car.  &  Payne,  518 ;  Fel- 
lieul  V.  Armstrong,  7  Adolph.  &  Ell.  557;  Eegina  v.  Stoke,  5  Adolph.  &  Ell.  303; 
Cnssons  v.  Skinner,  11  Mees.  &  Welsb.  IGl;  Rex  v.  Sharrington,  4  Doug.  11; 
Chandler  w.  Grieves,  2  H.  Blackst.  60G?i;  Rex  v.  Inslip,  1  Strange,  423;  Same  v. 
Polesworth,  2  Barn.  &  Aid.  483;  Same  v.  Stoke,  5  Adolpli.  &  Ell.  (N.  S.)  303. 


§§  259-60  MASTER   AND    SERVAXT.  324 

necessarily  results  in  accustoming  him  to  it,  and  if  the  place 
made  vacant  by  the  servant's  quitting  cannot  be  promptly  filled, 
verv  serious  injury  may  result  to  the  employer. 

Unless  stij^ulated  wages  are  agreed  upon,  the  master  is  bound 
to  pay  what  the  service  is  reasonably  worth,  and  the  usual  and 
most  proper  way  to  ascertain  that  value  is  to  measure  it  by  the 
current  wages  for  similar  service  in  the  immediate  neighbor- 
hood.^ 

§  259.   The  contract  for  the  payment  of  wages  by  the 

master  to  the  servant  is  governed  by  the  general  law  of  con- 
tracts. The  consideration  which  sustains  the  contract  is  the 
mutual  promises  of  the  parties,  each  to  the  other.  The  prom- 
ise of  the  employee  is  that  he  will  perform  the  stipulated  labor ; 
that  of  the  employer,  that  he  will  pay  the  price  therefor. 

Among  the  general  rules  governing  contracts  is  found,  as 
well  sustained  as  any,  that  mutual  promises  are  sufficient  to 
sustain  a  contract,  and  the  instance  of  master  and  servant  is  not 
unfrequently  cited  to  illustrate  the  rule. 

§  260.  If  the   servant  fall  sick,  or  become   disabled, 

durino-  the  service,  the  master  is  not  entitled  to  deduct  from 
his  wages  for  the  time  during  which  he  is  thereby  incapaci- 
tated from  performing  his  work.^ 

The  master  is  not  compelled  to  provide  medical  attendance 
for  his  servant  when  he  is  taken  ill,  or  to  furnish  medicines  for 
him ;  and  if  he  do  so,  upon  his  own  authority  or  judgment, 
without  the  servant's  request,  he  cannot  deduct  the  cost  thereof 
from  wages  due  to  the  servant;  but  he  must  furnish  to  the 
servant,  while  he  is  ill,  proper  food.^ 

1 1  story  ou  Contracts,  %2  h;  Costigan  v.  M.  &  H.  E.  R.  Co.  2  Denio,  612;  Hoyt 
V.  AViklfirc,  3  Johns.  518;  Ward  u.  Hinos,  9  Johns.  138;  Emerson  v.  Howland,  1 
.  Mason,  51. 

2  Rex  V.  Winterset,  Cald.  300;  Same  r.  Sudbrooke,  1  Smith,  59;  Chandler  v. 
Grieves,  2  H.  Black.  GOG  n;  Nichols  v.  Coolahan,  10  ISIetc.  449;  Dickey  v.  Linscott, 
20  Me.  453;  Seavcr  i-.  jNIorse,  20  Vt.  G20;  Fuller  v.  Brown,  11  Mete.  440;  Fcntou  v. 
Clark,  11  Vt.  557;  1  Story  on  Cont.  902  j. 

3  Wennal  v.  Adney,  3  Bos.  &  Pul.  247;  Seller  v.  Norman,  4  Car.  &  Payne,  80; 
Cooper  r.  Phillips,  4  Car.  &  Payne,  581;  Regina  v.  Smith,  8  Car.  &  Payne,  153; 
Denbar?;.  Williams,  10  Johns.  249;  Gibbons  on  the  Law  of  Contracts  etc.  Sec. 
G9;  Emmons  I'.  Lord,  18  Me.  351;  1  Story  on  Cont.  9G2j,  k. 


325  MASTER   AND    SERVANT.  §§  261-3 

§  261.  The  master  has  a  charge  of  the  health  of  the 
servant  peculiar  to  the  relation  between  them.  He  must, 
therefore,  refrain  from  exposing  him  to  needless  or  extraordin- 
ary risks,  and  he  should  take  of  his  employee  the  same  care 
which  he  might  reasonably  be  expected  to  take  of  himself ; 
but  he  is  not  responsible  for  an  accident  to  the  servant,  unless 
he  knows  of  the  danger  incurred  and  the  servant  does  not,  and 
he  incurs  no  responsibility  from  possible  injury  to  the  servant 
so  long  as  he  provides  for  his  safety  to  the  best  of  his  judg- 
ment.^ 

§  262.  Master  not  bound  to  give  a  "  character  "  at  end 
of  term.  —  The  master,  at  the  termination  of  the  service,  may 
or  may  not,  at  his  option,  "give  a  character"  to  the  servant; 
but  if  he  do  so,  and  misstate  the  servant's  character,  mali- 
ciously and  wantonly,  he  will  be  liable  for  damages.  But  the 
burden  of  proving  malice  is  upon  the  servant,  as  the  master 
may  speak  of  the  servant  disparagingly,  and  say  things  which 
will  be  prejudicial  to  him,  without  making  himself  liable,  un- 
less his  statements  can  be  proved  not  only  to  be  false,  but  mali- 
cious, as  it  is  to  be  presumed  that  he  states  what  he  believes  to 
be  true,  and  the  burden  is  upon  the  servant  to  prove  that  he  has 
•spoken  falsely  and  maliciously.^ 

§  263.  For  enticing  the  servant  away  from  his  mas- 
ter, or  for  harboring  him  when  it  is  known  that  he  is  breaking 
a  contract  to  labor  by  leaving  his  master's  premises,  the  common 
law  gives  a  risfht  of  action,  notwithstandino;  the  cause  of  action 
springs  from  a  breach  of  contract  to  which  the  enticer  or  har- 
borer  is  not  a  party ;  and  an  action  will  also  lie  at  common  law  for 
maliciously  procuring  a  breach  of  contract  to  give  exclusive  per- 
sonal services  for  a  time  certain,  equally  Avhether  the  employment 
has  commenced  or  is  only  in  fieri,  provided  the  procurement  be 
during  the  subsistence  of  the  contract  and  produces  damage  ; 
and  to  sustain  such  action,  it  is  not  necessary  that  the  employer 

1 1  Story  on  Cont.  9G2  I;  Priestly  i'.  Fowler,  3  Mees.  &  Wels.  1 ;  Walker  v.  Boi- 
ling, 22  Ala.  294;  Brown  v.  Maxwell,  6  Hill,  594;  Wigmore  v.  Jaj,  5  Exch.  354; 
Sherman  v.  Ptocliester  &  S.  R.  R.  15  Barb.  574. 

2  Rogers  v.  Clifton,  3  Bos.  &  Pul.  591 ;  Edmonson  v.  Stephenson,  Bull.  N.  P. 
R.  8;  Weatherston  v.  Hawkins,  1  T.  R.  110;  Story  on  Contracts,  Sec.  902  m. 


§  264  MASTER    AND    SERVANT.  826 

and  employed  should  stand  in  the  strict  relation  of  master  and 
servant ;  so  that  it  would,  from  the  best  considered  cases,  appear 
that  under  this  common-law  rule  an  action  for  damages  will  lie 
for  the  malicious  procurement  of  the  breach  of  any  contract, 
though  not  strictly  for  personal  serv'ices,  if  by  the  procurement 
damage  was  intended,  and  did  residt  to  the  plaintiff.^ 

But  the  mere  attempt  to  entice  a  servant  away  Avould  not  be 
actionable  for  want  of  damage ;  nor  will  the  action  lie  after  a 
composition  by  the  master  with  the  servant  for  the  breach  of 
the  contract.  To  induce  a  servant  to  leave  the  master  at  the 
end  of  the  stipulated  term,  is  not  actionable  ;  it  tends  to  no 
breach  of  a  conti^ct,  but  only  to  prevent  one  which  might  here- 
after be  made.^ 

§  264.  The  master  is  liable  on  the  servant's  contracts 

made  in  the  usual  course  of  the  employment  by  the  latter  for 
and  in  the  name  of  the  master,  but  the  contract  so  made,  to  be 
made  binding  on  the  principal,  must  be  such  as  the  usual  em- 
ployment of  the  servant  would  justify  a  reasonable  and  prudent 
jjerson  in  believing  the  servant  to  have  been,  by  the  master, 
clothed  with  authority  to  act  for  him  in  the  premises.  Thus,  a 
servant  who  is  engaged  in  work  about  the  house,  and  who  is 
in  the  habit  of  purchasing  the  family  supplies,  might  buy  such 
supplies  in  the  name  of  the  master,  and  the  latter  would  be 
compelled  to  pay  for  them,  even  if  the  servant  had  no  order  to 
buy,  or  was,  in  so  doing,  defrauding  and  obtaining  goods  for 
himself ;  but  if  his  usual  employment  is  upon  f  ann  Avork,  and  not 
connected  with  household  work,  and  he  had  never  been  permit- 
ted by  the  master  to  make  purchases,  he  could  not  bind  the 
master  by  going  to  the  store  and  buying  goods,  simply  by  being 
the  servant  and  pretending  to  have  authority.^ 

Where  a  servant  is  employed  for  the  general  conduct  of  any 
business,   and  has  no  particular  orders  witli  reference  to  the 

1 .3B1.  Com.  142;  Lumley  t'.  Gye,  2  Ell.  &  Bl.  210:  Blake w.  Lanyon,  6  T.  R.  221; 
Adams  r.  Bafeald,  1  Leon.  240;  Sykesv.  Dixon,  9  A.  &  E.  093;  Tarlton  v.  McGaw- 
ley,  1  Peake's  N.  P.  C.  207;  Pilkington  r.  Scott,  15  31.  &  W.  G57;  Hartly  c.  Cum- 
mings,  5  Com.  B.  247;  (E.  C.  L.  R.  57);  Haiglit  v.  Badgley,  15  Barb.  499. 

2  Campbell  v.  Cooper,  34  K  H.  49;  2  Kent's  Com.  258. 

8  A  servant  sent,  -without  money,  to  buy  goods,  lias  implied  authority  to  pledge 
his  master's  credit.  (Tobin  v.  Crawford,  9  M.  &  W.  718;  Weisgar  r.  Graham,  3 
Bibb,  313.) 


327  MASTER   AND    SERVANT.  §§  265-6 

manner  in  which  that  business  is  to  be  transacted,  he  is  consid- 
ered as  invested  with  all  the  authority  necessary  for  properly 
conducting  it.  The  employment  is  deemed  to  be  characterized 
by  the  delegation  of  power  to  represent  the  master  to  the  extent 
of  properly  doing  the  work,  and  the  authoi-ity  to  do  the  busi- 
ness embraces  the  appropriate  means  to  accomplish  the  desired 
end.^ 

§  265.  The  master  is  liable  for  injuries  committed  by  a 
servant,  whether  such  occur  throuo-h  the  servant's  neo-lio-ence, 
fraud,  deceit,  or  even  willful  misconduct,  so  long  as  it  is  done  in 
the  course  of  his  employment ;  and  it  makes  no  difference  that 
the  master  did  not  authorize,  or  even  know  of,  the  servant's  act 
or  neglect.  Even  if  the  servant,  in  the  commission  of  the  act, 
has  willfully  violated  the  orders  of  his  master,  the  latter  must 
still  be  held  answerable  so  long  as  the  servant  commits  the  act 
in  the  usual  course  of  his  employment ;  ^  and  this  liability  is  not 
confined  to  those  who  work  under  the  immediate  supervision  of 
the  master,  but  extends  to  all  others  whom  he  selects  to  do  any 
work  or  superintend  any  business  for  him.^ 

§  266.  The  master's  responsibility  ends  "when  the  person 
employed  so  far  exceeds  the  limits  of  his  instructions  as  to  cease 
to  be  acting  under  the  direction  of  his  employer. 

The  theory,  on  which  the  master  is  held  liable  for  injuries  by 
his  servant,  is  that  he  who  employs  another  to  do  an  act  as- 
sumes the  consequences,  and  that  the  servant  is  but  an  agent, 
his  acts  being  those  of  his  principal. 

But  this  responsibility  extends  no  further  than  to  such  acts 
as  occur  while  the  servant  is  engaged  on  the  master's  Avork,  or 


^tj"©" 


1  "  The  master  is  "bound  ty  the  act  of  his  servant,  either  in  respect  to  contracts 
or  injiories,  when  the  act  is  done  hy  authority  of  the  master."  (2  Kent's  Com. 
259;  1  Parsons  on  Contracts,  101-9.) 

2R.  R.  Co.  V.  Dickson,  G3  111.  151;  Knight  v.  Luce,  IIG  ]\Iass.  588;  Schouler's 
Dom.  Rel.  63&-7;  Story  on  Agency,  452;  Smith's  Mast.  &  Servt.  151-2;  Shear.  & 
Bed.  on  Neg.  65.  The  agents  and  sei-vants  of  a  railroad  company,  while  en- 
gaged in  running  a  train  of  cars,  are  in  tlie  line  of  tiieir  duty,  and  for  their  acts, 
•willfully  done  while  so  engaged,  the  company  is  liable.  (R.  R.  Co.  v.  Graham, 
GGInd.  239.) 

3  Rex  V.  Hoseason,  14  East,  605;  Sangher  v.  Pointer,  5  B.  &  C.  554;  Wayland 
V.  Elkins,  1  Stark.  272. 


§  267  MASTER    AXU    SERVANT.  328 

in  matters  directly  connected  with  the  business  on  which  lie  is 
engao;ed. 

The  master  is  not  to  be  deemed  one  who  guarantees  to  the 
community  the  virtue  of  his  servants,  or  is  to  be  held  for  their 
misconduct  apart  from  or  to  the  extent  of  the  fair  application  of 
the  maxim  quifacit  per  alium  facit  per  se,  and  it  is  only  upon  the 
hypothesis  tliat,  where  the  servant  is  engaged  ujjon  the  master's 
work,  he  is  the  representative  of  such  master,  and  his  acts  are 
those  of  his  employer.  Hence,  it  results  that  if  a  third  pai-ty 
knows  of  instructions  from  the  master  to  the  servant,  which  the 
latter  is  violating,  such  person  cannot  charge  the  master  for  loss 
or  injury  which  results  from  breach  of  contract  by  the  servant 
when  so  disobeying  instructions,  because  he  becomes  aware  that 
the  servant  no  longer  represents  the  will  of  the  master.  And 
in  matters  of  injury  by  the  servant,  beyond  the  scope  of  his  au- 
thority, he  is  as  much  a  stranger  to  his  master  as  any  other  per- 
son, and,  to  fasten  the  responsibility  on  the  master,  the  primary 
fact  that  the  servant  was  acting  within  the  limits  of  his  employ- 
ment must  be  shown.^ 

§  267.   The  servant  must  reimburse  his  master  when 

the  negligence   or  willful  misconduct  of  the   former  has  been 

1  Knight  V.  Luce,  IIG  Mass.  58G.  "  On  the  issue  whether  a  person  employed  to 
burn  brush  upon  the  land  of  another  had  authority  also  to  buni  the  brush  within 
the  limits  of  the  highway  adjoining,  from  which  it  Avas  separated  by  a  wall,  the 
question  whether  a  direction  by  the  owner  to  clear  up  the  land  included  land 
within  the  limits  of  the  highway  is  for  the  jury,  although  the  estate  of  the  owner 
extended  to  tlie  middle  of  the  road." 

This  was  a  case  where  a  person  was  employed  to  clear  up  land  adjoining  a 
road.  He  cleared  a  little  outside  of  the  stone  fence,  and  burned  in  the  road. 
Plaintiff's  liorse  was  friglitened,  ran  away,  and  plaintiff  was  thrown  from  the 
wagon  and  Iiurt.  For  his  injuries,  he  sued  the  master,  who  defended  on  the 
ground  that  the  employment  was  to  "  clear  uj)  the  land  within  the  lot,"  and  not 
tlic  road.  The  jury  returned  a  verdict  in  favor  of  defendant,  which,  on  appeal, 
was  affirmed. 

So  in  Wilson  v.  PcA'erly,  2  JST.  H.  548,  where  a  servant  was  employed  to  harrow 
in  one  field  and  watch  a  lire  in  another.  He  undertook  to  do  more,  and  set  lire 
to  a  pile  of  rubbish,  and,  from  this  last,  fire  escaped  and  burned  plaintiff's  prop- 
erty. In  the  action  for  damages  against  the  master,  he  was  held  harmless,  the 
Court  giving  the  rule:  "Where  a  servant  acts  under  the  special  orders  of  liis 
master,  the  master  is  not  liable  for  his  negligence  in  doing  business  not  ordered." 
CMcManus  v.  Crickett,  8  D.  &  R.  533;  Smitli's  Mast.  &  Servt.  IGO;  Shaw  v.  Reed, 
y  W.  &  S.  72;  Harriss  &  Mabry,  1  Ired.  240;  Foster  v.  Essex  Bk.  17  Mass.  500; 
Lyons  v.  Martin,  8  Ad.  &  El.  512;  McKenzie  v.  McLeod,  10  Bing.  385;  Stevens  v, 
Armstrong,  7  X.  Y.  435. ) 


329  MASTER   AND    SERVANT.  §  267 

visited  upon  the  latter,  at  the  suit  of  a  third  party  injured.  The 
primary  liability  which  renders  the  master  liable  for  injuries 
resulting-  from  the  servant's  failure  to  exercise  due  care,  or  for 
his  willful  misconduct,  is  to  the  public,  while,  as  between  the 
parties,  the  contract  is  to  perform  the  service  in  a  careful  man- 
ner and  with  requisite  skill. 

Through  a  breach  in  this  contract  alone  can  the  employer  be 
reached  in  an  action  for  damages  by  a  third  party,  and  the 
measure  of  the  recovery  against  the  servant,  to  which  the  mas- 
ter is  entitled,  is  naturally  the  judgment  which  he  has  been 
compelled  to  satisfy,  with  costs,  and  such  reasonable  counsel 
fees  as  he  has  paid  or  become  chargeable  with. 

In  the  matter  of  defending  the  suit  brought  by  the  person 
injured,  and  in  incurring  the  expense  of  counsel  fees,  the  serv- 
ant should  be  consulted  by  the  master,  and  if  he  choose  to  do 
so,  he  may  assume  such  control  of  the  case  as  to  insure  him  a 
fair  hearing  upon  the  question  of  neglect  or  misconduct,  this 
right  being  subject  to  and  in  consonance  with  that  of  the  mas- 
ter, to  use  proper  means  to  avoid  judgment  being  taken  against 
him.^ 

1  "  A  servant  is  liable  to  an  action  at  tlie  suit  of  liis  master,  -n-hen  a  third  per- 
son lias  brought  an  action  and  recovered  damages  against  the  master,  for 
injuries  sustained  in  consequence  of  the  servant's  negligence  or  misconduct." 

"  The  servant  is  liable  for  the  costs  and  counsel  fees  in  such  suit,  incurred  in 
the  defense,  he  having  been  notified  of  its  pendency,  and  having  requested  his 
master  to  defend."    (R.  R.  Co.  v.  Latham,  C3  Me.  177.) 


268  FACTORS    AND   BROKEES.  330 


CHAPTER  XXIV. 

FACTORS  AND  BROKEES. 

§  2G8.  A  factor  differs  from  a  broker. 

§  269.  Sold  note  and  bought  note. 

§  270.  The  broker  agent  for  the  seller. 

§  271.  Real  estate  brokers — when  their  commissions  are  due. 

§  272.  Implied  warranty  of  title,  vendor  to  broker. 

§  273.  Factors,  their  duties  and  i^owers. 

§  274.  The  factor  has  lien  on  goods  consigned  to  him. 

§  275.  Foreign  factors  generally  treated  as  princiiials. 

§  276.  A  factor  "  del  credere." 

§  277. '  Presumptions  of  knowledge  of  consignor  as  to  usages  of  trade. 

§  278.  When  and  to  what  extent  factor  may  pledge  goods. 

§  279.  Factor  cannot  pledge  goods  for  his  debts. 

§  280.  Innocent  i^ledgee  of  factor  not  i^rotected. 

§  281.  Consignor  may  recover  of  jiledgee  value  of  goods. 

§  282.  Ignorance  that  goods  were  consigned,  no  defense  to  pledgee. 

§  283.  Consigned  goods  not  liable  for  factor's  debts. 

§  284.  Factor  must  obey  consignee's  orders. 

§  285.  Purchase  by  factor  of  goods  consigned  to  him. 

§  280.  Factor  not  an  insurer. 

§  287.  Objections  to  employment  of  "middle-men." 

§  288.  Farmer  may  sell  pi'oduce  without  license. 

§  268.  A  factor  differs  from  a  broker  materially,  in  re- 
spect to  the  duties  and  responsibilities  of  his  position,  and  his 
power  with  reference  to  the  business  of  the  principal. 

A  broker  buys  and  sells  in  the  name  of  his  principal ;  he  is 
a  special  agent,  employed  to  make  bargains  and  contracts  be- 
tween other  persons,  receiving,  as  a  general  thing,  his  remunera- 
tion by  means  of  a  commission.  He  is  merely  a  negotiator  be- 
tween the  other  parties,  and  acts  in  tlie  name  only  of  his  em- 
ployer ;  the  property,  which  he  is  employed  to  buy  and  sell,  is 
not  intrusted  to  his  custody  or  possession,  and  he  is  not  author- 
ized to  buy  and  sell  it  in  his  own  namc.^ 

1 1  Bouvier's  Law  Die.  "  Brokers  " ;  Dunlap's  Paley  on  Agency,  Sec.  13;  Story 
on  Agency,  Sec.  34.  "A  factor  differs  from  a  broker  in  some  imiiortaut  par- 
ticulars. A  factor  may  buy  and  sell  in  his  o\\ti  name,  as  well  as  in  the  name  of 
his  j)riucipal.  A  broker  is  always  bound  to  soil  in  the  name  of  his  principal. 
A  factor  is  intrusted  with  the  i^osscssion,  management,  control,  and  disjiosal  of 


331  FACTORS    AND   BROKERS.  §§  2G9-70 

§  269.  Sold  note  and  bought  note. — In  making  sales,  the 
custom  is  for  the  broker  to  give  to  the  buyer  a  memorandum  of 
the  transaction,  which,  in  commercial  parlance,  is  designated  a 
"  sold  note,"  and  to  the  seller  a  similar  memorandum,  which  is 
called  a  "  bought  note  "  ;  in  the  transaction  he  is  the  agent  of 
both  parties,  and  they  are  respectively  bound  by  his  contract 
and  his  memoranda  thereof ;  the  bought  and  sold  notes  become 
the  contract  of  the  parties,  provided  the  agent  has  acted  fairly, 
and  within  the  scope  of  his  authority.^ 

In  signing  the  contract  of  purchase  and  sale,  the  broker's 
memorandum  thereof,  signed  by  him  as  the  agent  for  both 
parties,  is  sufficient  under  the  Statute  of  Frauds.^ 

§  270.  The  broker  is  the  agent  of  the  seller  in  making 
the  sale,  and  after  it  is  closed,  for  certain  purposes,  becomes 
agent  for  the  buyer.  Although  sometimes  the  agent  for  both 
parties,  primarily  the  broker  is  agent  only  for  the  party  who  has 
employed  him,  and  it  is  only  wlien  the  bargain  is  completed  that 
he  becomes  the  agent  of  the  other,  and  then  only  to  the  extent 
requisite  to  effectuate  the  purpose  of  his  employment.^ 

the  goods  to  be  bought  or  sold,  and  has  a  special  property  in  them,  and  a  lien 
on  them.  A  broker,  on  the  contrary,  usually  has  no  such  possession,  manage- 
ment, control,  or  disposal  of  the  goods,  and,  consequently,  has  no  such  special 
property  or  lien."  (Pickering  v.  Busk,  15  East,  38,  43;  Coddington  v.  Goddard, 
82  Mass.  flG  Gray]  436;  Baring  v.  Corrie,  2  B.  &  Aid.  147. ) 

1  Stcry  en  Agency,  Sec.  28;  Hinckley  v.  Arey,  27  Me.  302;  Rowe  v.  Stevens,  53 
N.  Y.  021,  in  which,  it  appearing  that,  from  the  nature  of  the  transaction  and 
proceedings  had,  each  party  employed  the  broker,  both  were  held  liable  to  pay 
for  his  services. 

The  name  of  both  buyer  and  seller  should  appear  on  the  "bought"  and 
"sold"  notes.  (Champion  v.  Plumer,  4  Bos.  &  Pull.  252;  Picks  v.  Hawkin,  4 
Esp.  114,  115.) 

2Rucker  v.  Cammeyer,  1  Esp.  100;  Browne  on  Statute  of  Frauds,  Sec.  347. 
"It  is  clearly  settled  that  the  bought  and  sold  notes  together  constitute  a  bind- 
ing memorandum,  though  the  broker  make  no  entry  in  his  book."  (Hawesr. 
Foster,  1  Moo.  &  Rob.  308;  Hicks  v.  Hawkin,  4  Ibid,  114;  Chapman  v.  Partridge, 
5  Ibid,  250;  Dickersonv.  Lilwall,  1  Stark.  128;  Soames  ?'.  Spencer,  IDow.  &  Ry. 
32;  Short  v.  Spackman,  2  Barn.  &  Adol.  302;  Grant  v.  Fletcher,  5  Barn.  &  Cress. 
436.) 

3  Story  on  Agency,  Sec.  31.  "It  has  already  been  suggested  that  a  broker  is, 
for  some  purposes,  treated  as  the  agent  of  both  parties.  But,  primarily,  he  is 
deemed  merely  the  agent  of  the  party  by  whom  he  is  originally  employed;  and 
he  becomes  the  agent  of  the  other  party  only  when  the  bargain  or  contract  is 
definitely  settled,  as  to  its  terms,  between  the  principals."  (Hinckley  v.  Arey, 
27  Me.  362.) 

And  it  behooves  the  person  dealing  with  a  broker  to  guard  against  accepting 
service  from  him,  in  the  premises,  before  the  trade  is  closed,  and,  in  all  respects. 


§  271  FACTORS    AXD    BROKERS.  332 

No  power  of  substitution  can  be  implied  by  the  broker  from 
the  business  being  intrusted  to  him  ;  it  is  the  broker's  individunl 
capacity  and  probity  which  is  relied  upon,  and  he  cannot  ordi- 
narily delegate  his  authority  to  a  sub-agent,  clerk,  or  other  per- 
son, without  the  assent  of  his  principal,  either  express,  or  properly 
implied  from  the  circumstances.^ 

§  271.  Real  estate  brokers — Their  commissions  are  due, 
when. — The  commissions  of  a  real  estate  broker  being  the  con- 
sideration upon  which  he  renders  service,  and  it  being  impossi- 
ble for  him  to  control  the  conduct  of  his  employer  in  the  matter 
of  consummating  sales  to  find  arrearages  for  which  the  employ- 
ment has  been  given  and  accepted,  the  law  extends  to  the  broker 
protection  from  the  caprice  of  the  vendor  by  allowing  him  the 
commission  when  it  is  earned,  whether  the  sale  is  consummated 
or  not. 

If,  through  the  agency  of  a  real  estate  broker,  a  sale  is  ef- 
fected, and  if  his  communications  with  the  purchaser  are  the 
means  of  bringing  the  parties  together,  and  the  sale  results 
in  consequence,  the  compensation  is  earned,  even  if  at  the  sale 
the  broker  is  not  present ;  and  the  same  ride  applies  where  a 
broker  is  employed  to  purchase  real  estate.^ 

to  treat  the  broker  as  the  representative  of  the  person  who  has  employed  him, 
to  the  extent  of  the  employment  only ;  for  if  the  broker  sells  the  iiroperty  in 
his  own  name,  -without  some  special  authority  so  to  do,  inasmuch  as  he  exceeds 
his  proper  authority,  the  principal  will  have  the  same  rights  and  remedies 
against  the  purchaser  as  if  his  name  had  been  disclosed  by  the  broker.  (1871, 
Graham  !•.  Duekwall,  8  Bush,  [Ky.]  12.) 

1  Story  on  Agency.  Sec.  29 ;  Ibid,  Sec.  109 ;  Henderson  v.  Barnwall,  1 Y.  &  Jerv. 
387;  Cockran  v.  Irlam,  2  M.  &  S.  301;  Paley  on  Agency,  241. 

2  Lloyd  V.  Matthews,  51  X.  Y.  124.  Brokers  are  entitled  to  commissions  if  the 
sales  were  made  through  their  agency,  as  their  procuring  causes.  So  held  in 
Knap  i".  Wallace,  41  N.  Y.  477.  "  A  real  estate  broker,  employed  to  purchase 
real  estate,  earns  liis  commission  when  he  lias,  in  good  faith,  brought  to  his  em- 
ployer a  vendor,  who  makes  a  written  contract  with  him  for  the  sale  of  the 
projierty.  It  is  no  answer  to  his  claim  for  commissions  against  such  em- 
ployer, that  the  vendor  could  not  make  a  jierf ect  title,  and  was  therefore  unable 
to  carry  out  his  contract  of  sale." 

Eedfieldi!.  Legg,  38  Ibid,  212;  Moses  v.  Bierling,  31  Ibid,  4G2;  "SVoods  v.  Ste- 
phens, 4G  Mo.  555;  Hogue  v.  O'Connor,  1  Sweeny,  (N.  Y.)472;  41  How.  Br.  287; 
Smith  V.  Smith,  1  Sweeny,  (X.  Y.)  552. 

Plielanu.  Gardner,  43  Cal.  30G.  "If  the  ovraer  Of  laud  employs  another  per- 
son to  sell  for  him  his  land  at  an  agreed  rate  of  commission,  and  the  broker 
finds  a  jiurchaser  who  is  willing  to  take  the  land  at  the  jirice  fixed,  the  owner 
cannot,  by  a  refusal  to  sell  to  him  or  by  a  sale  to  another,  avoid  the  contract  and 
escape  the  payment  of  the  commission."    (Blood  v.  Shanam,  29  Cal.  393.) 


333  FACTORS    AND    BROKERS.  §  272 

But  if,  by  the  terms  of  his  contract,  the  broker  covenants  to 
sell  within  a  stated  time  at  tlie  price  agreed  upon,  and  time  is 
made  the  important  element  of  the  employment,  he  receives  the 
property  only  for  the  purpose  and  to  the  extent  stipulated  ;  hence, 
he  has  no  lien  or  claim  for  brokerage  after  the  time  has  expired, 
unless  he  has  made  the  sale ;  and  the  owner  of  the  land  may,  if 
he  please,  sell  to  a  party  who  came  to  him  at  the  solicitation  of 
the  broker,  at  a  less  price  and  free  from  the  commission.^ 

§  272.  Implied  ■warranty  of  title  by  vendor  to  broker. — 

The  title  of  the  vendor  is  not  to  be  considered  by  the  broker : 
he  is  to  sell  the  land ;  to  bring  to  the  vendor  a  person  able  and 
willing  to  buy  at  the  stipulated  pi'ice  ;  and  if,  when  the  sale  is  to 
be  consummated,  it  appears  that  the  title  is  so  far  defective  as 
to  defeat  the  sale,  the  vendor  may  be  held  to  pay  the  commis- 
sion, for  the  service  has  been  rendered,  the  commission  earned, 
and  the  defect  in  the  title  is  the  misfortune  of  him  to  whom  the 
land  belongs,^  unless  the  broker,  at  the  time  of  accepting  the 
employment,  knew  of  the  defect.^ 

"  The  conditions  precedent  to  a  right  to  recover,  in  an  action  for  brokerage, 
must  be  the  original  discovery  of  the  purchaser;  the  starting  of  the  negotiations 
by  the  broker,  and  a  final  closing  of  the  bargain  by  or  on  behalf  of  the  princi- 
pal."   ("Wallace  v.  Simpson,  New  York  Marine  Court,  General  Term,  July,  1875.) 

1  Where,  by  a  contract  witli  the  owner  of  real  estate,  the  broker  is  bound  to  sell 
at  a  given  price  and  within  a  limited  time,  if  he  does  not  sell  for  that  price  and 
within  that  time  the  contract  is  at  an  end,  and  the  owner  may  tlien  sell  the 
property  to  a  purcliaser  procured  by  the  broker  at  a  less  price  and  free  from  the 
broker's  commission.  (Sattherthwaite  ti.  Yreeland,  48  How.  Pr.  R.  508.)  This 
case,  among  the  latest,  appears  to  put  the  broker  somewhat  at  the  mercy  of  the 
vendor  of  real  property,  in  that  the  latter  might  induce  the  broker  to  give  his 
services  in  the  hoiae  to  sell  witliin  the  prescribed  period  at  a  price  higher  than 
the  seller  hoped  to  realize,  and  when  he  had  brought  the  parties  into  com- 
munication, and  the  trade  fell  through  because  of  the  unreasonable  price 
charged,  the  vendor  would  have  but  to  allow  the  period  of  time  to  expire  and 
then  sell  at  the  lower  price,  (which  was  his  true  one  all  the  time)  and  defraud 
the  broker.  The  case  is  in  this  connection  at  variance  with  the  general  tenor  of 
decisions,  but  is  supported  measurably  by  Jacobs  i-.  Kolff,  2  Hilton,  133;  Hooley 
V.  Townsend,  IG  How.  Pr.  R.  125;  Barnard  v.  Mennott,  33  Ibid,  440;  Doty  v. 
Miller,  43  Barb.  520;  Briggs  v.  Rowe,  4  Keyes,  424. 

These  cases  state  the  proposition  that  the  relation  is  one  of  contract;  that  the 
vendor  for  the  period  limited,  or  for  a  reasonable  time  where  no  limit  is  des- 
ignated, is  to  hold  the  land  ready  for  sale  at  the  designated  price,  but  no  further 
restricts  him  in  the  exercise  of  control  over  his  property,  and  at  the  end  of  the 
time  resumes  the  control  absolutely. 

2  Jones?;.  Adler,  34  Md.  440;  Nesbit  ri.  Helser,  49  Mo.  383;  Middleton  v.  Find- 
la,  25  Cal.  7G;  Ibid,  81;  Case  of  The  Monte  Allegre,  9  Wheat.  G44. 

3  Toombs  V.  Alexander,  101  ]\Iass.  255;  Bell  v.  Kaiser,  50  Mo.  150;  Tyler  v. 
Pars,  52  JNIo.  244. 


§  273  FACTORS    AND    BROKERS.  334 

So  it  lias  been  held  that  where  a  broker  acted  for  both  par- 
ties in  an  exchange  of  property  he  might  claim  commissions 
from  each.^ 

If,  after  having  employed  a  broker,  the  owner,  without  re- 
voking the  agency,  make  the  sale,  the  commission  is  payable,  or 
at  all  events  half  commission  under  local  custom,  or  a  ratable 
j)roportion  of  what  his  commission  would  have  been.^ 

§  273.  Factors,  their  duties  and  powers. — A  factor  is 
distinguished  from  a  hroher  by  being  intrusted  with  the  pos- 
session and  disposal  of  property  intrusted  to  him  for  sale  by 
him  to  whom  the  property  belongs  ;  the  factor  is  clothed  with 
such  apparent  ownership  as  enables  him  to  deal  with  the  prop- 
erty as  his  own ;  he  may  sell  it  in  his  own  name,  and  the 
principal  is  bound  by  the  sale  as  though  he  had  made  it  himself, 
and  it  thence  residts  that  the  factor  may,  in  his  own  name, 
receive  and  receipt  for  payments. 

The  definition  of  the  word  "  factor,"  most  generally  received, 
is :  "  An  agent  employed  to  sell  goods  or  merchandise,  con- 
signed or  delivered  to  him  by  or  for  his  principal,  for  a  com- 
pensation, commonly  called  factorage  or  commission."^  And 
this  definition  appears  fully  to  serve  its  purpose ;  but  the  pre- 
vailing custom  of  compensation  to  factors  being  by  commission 
upon  sales  made  by  them,  Avhile  they  are  apparently  dealing 
with  their  own  property,  has  caused  them  to  be  more  commonly 
known  as  commission  merchants,  where  acting  as  domestic  fac- 
tors, and  residing  in  the  same  country  with  their  principals  ; 
and  as  consignees  when  living  abroad,  and  engaged  in  the  busi- 
ness of  a  foreign  factor.^ 

iMuller  V.  Kertzleb,  7  Bush,  (Ky.)253;  Eupp  v.  Samson,  8G  Mass.  308.  But 
see  Lloyd  ?.-.  Colston,  5  Bush,  587,  in  which  the  converse  has  been  held. 

2, Jones  V.  Adler,  34  Md.  440;  Walton  r.  New  Orleans,  23  La.  An.  398;  ]\Iartin 
V.  Sillman,  53  N.  Y.  615. 

"A  real  estate  broker,  who  claims  a  commission  on  the  sale  of  real  estate,  is 
entitled  to  the  same,  if  he  shows  an  employment,  and  that  the  sale  was  made  by 
means  of  his  efforts  or  agency.  If  the  purchaser  is  found  tlirough  the  broker's 
instrumentality,  lie  is  entitled  to  his  commission,  although  the  owner  negotiates 
the  sale  himself,  and  although  the  purchaser  is  not  introduced  to  the  owner  by 
the  broker,  and  the  latter  is  not  personally  acquainted  with  the  purcliaser." 
(Sussdorff  V.  Schmidt,  N.  Y.  Court  of  Appeals,  August  1874;  A.  L.  J.  August 
22d,  1874.) 

8  1  Bouv.  Die.  570;  Dunlap's  Paley  on  Agency,  Sec.  13;  Story  on  Agency,  Sees. 
33,  34,  111,  112;  Graham  r.  IJuckwall,  8  Busli.  (Ky.)  12. 

4  1  Bouv.  Die.  570.     "A  domestic  factor  is  one  who  resides  in  the  same  country 


335  rACTOES  and  brokers.  §  274 

§  274.  A  factor  has  a  lien  on  goods  consigned  to  him, 
for  his  general  advances  and  his  commissions  ;  this  lien  attaches 
immediately  upon  the  property  coming  into  his  possession.^ 
The  lien  is  not  alone  for  the  special  advances  made  upon  the 
identical  shipment,  but  extends  also  to  and  protects  the  general 
balance  remaining  in  his  favor.^  He  is,  for  all  practical  pur- 
poses, to  all  the  world  except  his  principal,  to  be  regarded  as 
the  owner  of  the  property ;  he  may  insure  it,  both  for  the  pro- 
tection of  his  lien  for  advances  and  charges,  to  the  extent  of 
his  interest  and  for  his  principal.^  lie  may  sue  in  his  own  name 
for  the  price  of  goods   sold  by  him  for  his  principal,  and  of 

with  his  principal.  By  the  usages  of  trade,  or  intendment  of  law,  when  do- 
mestic factors  are  emijloyed  in  the  ordinary  business  of  buying  and  selling 
goods,  it  is  i^resumed  that  a  reciprocal  credit  between  the  jtrincipal  and  the 
agent,  and  third  persons,  has  been  given.  When  a  iiurchase  has  been  made  by 
such  a  factor,  he,  as  well  as  his  principal,  is  deemed  liable  for  the  debt;  and  in 
case  of  a  sale,  the  buyer  is  responsible  both  to  the  factor  and  principal  for  the 
purchase-money,  but  this  presumption  may  be  rebutted  by  proof  of  exclusive 
credit."  (Story  Ag.  267,  291,  293;  Paley  on  Agency,  243,  371;  9  Barn.  &  C.  78; 
15  East,  02.) 

"  A  foreign  factor  is  one  who  resides  in  a  different  country  from  his  i^rincipal. 
Foreign  factors  are  held  i^ersonally  liable  upon  all  contracts  made  by  them  for 
their  employers,  whether  they  describe  themselves  in  the  contract  as  agents  or 
not.  In  such  cases,  the  presiimption  is  that  the  credit  is  given  exclusively  to 
the  factor.  But  this  presumption  may  be  rebutted  by  the  proof  of  a  con- 
trary agreement."  (Story  Ag.  Sec.  268;  Paley  on  Ag.  245,  373;  BuUer,  Nisi 
P.  1.30. ) 

1  "The  question  as  to  the  precise  time  when  the  property  may  be  said  to 
vest  in  a  factor  who  is  consignee  under  liabilities  in  advance,  properly  falls 
under  the  law  of  shipping,  and  especially  under  the  right  of  stoppage  in 
transitu."  (Story  on  Agency,  Sec.  Ill,  Note  3;  Abbott  on  Shipp.  p.  3,  Chap. 
9,  Sees.  4-25;  Holbrook  u.  Wright,  24  Wend.  1G9;  Hall  v.  Smith,  1  Bos.  &  Pull. 
563.) 

Bailey  v.  R.  R.  R.  Co.  49  N.  Y.  70;  Byers  v.  Danley,  27  Ark.  77.  A  mere  con- 
signment gives  the  factor  no  lien  for  advances  on  previous  consignments,  until 
such  goods  actually  arrive  and  come  into  the  factor's  possession,  and  does  not 
prevent  the  consignor  from  transferring  the  goods,  while  on  the  way,  to  a  third 
person.  (Bank  of  Rochester  v.  Jones,  4  N.  Y.  497;  Winter  v.  Coit,  7  N.  Y. 
288.) 

2  Knapp  V.  Alvord,  10  Paige,  105;  Grieff  v.  Cowquill,  2  Cincinnati  (Sup.  Ct.)  58; 
2  Disney,  Ohio,  54.  "  The  factor  has  his  lien,  not  merely  for  a  particular  advance, 
but  also  for  his  general  balance.  He  never  loses  his  lien  but  by  his  own  consent, 
or  his  neglect  to  enforce  it,  if  it  has  been  once  legally  vested."  (Howe  v.  Whited, 
21  La.  An.  495.) 

The  lien  of  a  factor  for  advances  made  prior  to  the  levy  of  an  attachment  on 
the  property,  is  superior  to  that  of  the  attaching  creditor.  (Maxen  v.  Lamarum, 
21  La.  An.  366.) 

3  Waters  v.  Monarch  L.  &  F.  Ins.  Co.  34  Eng.  Law  &  Eq.  116;  Story's  Ag, 
Sec.  111. 


§§  275-7  FACTORS   AXD    BROKERS.  336 

course  may  release  debtors  for  and  upon  such  transactions,  un- 
less so  far  as  specially  restricted  by  his  principal.^ 

§  275.  Foreign  factors  are  generally  treated  as  princi- 
pals, whether  they  are  known  to  be  acting  for  others  or  not, 
so  that  exclusive  credit  is  generally  given  by  and  to  them ;  and 
they  alone,  therefore,  are  entitled  to  maintain  actions  on  con- 
tracts arising  in  their  conduct  of  the  business.^ 

Domestic  factors,  by  the  usages  of  trade,  and  by  custom 
having  its  origin  in  the  convenience  of  the  parties  interested, 
are  treated  as  principals,  but  not  as  exclusive  principals,  for  the 
owner  of  the  goods  may  sue  or  be  sued  on  the  contracts  made 
by  his  factor,  whether,  in  making  the  contract,  the  other  party 
was  or  was  not  aware  that  the  factor  was  acting  as  such  for 
another  person.^ 

§  276.  A  factor  del  credere  is  one  who,  for  an  additional 
commission,  or  other  consideration,  in  case  of  sale  being  made 
on  credit,  undertakes  to  guarantee  to  his  principal  the  debt  due 
by  the  buyer.  A  factor  with  a  del  credere  commission  is  lia- 
ble to  tlie  principal  if  the  purchaser  becomes  insolvent,  or  fails 
to  pay  the  debt ;  but  the  factor  is  not  primarily  the  debtor,  and 
before  reaching  the  factor,  the  principal  must  make  it  appear 
that  the  buyer  cannot  be  made  to  pay,  and  to  that  end,  the 
principal  may,  in  his  own  name,  sue  the  buyer,  notwithstanding 
the  del  credere  commission.^ 

§  277.  Presumption  of  knowledge  of  consignor  as  to 
usages   of    trade. — In  forwarding  goods  for  sale  to  a  factor 

1  Drinkwater  v.  Goodwin,  CoAvp.  254;  Jolmson  v.  Osborne,  11  AdoliHi.  & 
Ellis,  549;  Diinlap's  Taley  on  Agency,  278,  285,  28G.) 

^"SVilson  r.  Zuluctta,  14  Q.  B.  405;  1  Liverm.  on  Agency,  22G,  227;  Story  on 
Agency,  Sec.  400. 

3  Paley  on  Agency,  324,  oGl;  Story  on  Agency,  Sec.  400  et  sc(i.  Tlie  lien  of  a 
factor  who  has  accepted  a  draft  specifically  i^ayable  out  of  the  jiroperty  of  the 
drawer,  in  the  hands  of  the  factor,  in  favor  of  a  creditor  of  tlie  drawer,  while 
the  factor  retains  the  custody  of  the  property  with  the  consent  and  as  the  mu- 
tual agent  of  both  parties,  drawer  and  paj^ee,  is  paramount  to  that  of  any  other 
creditor  or  purchaser  from  the  owner.    (Eaton  v.  Truesdill,  52  111.  307. ) 

*  Gale  V.  Comber,  7  Taunt.  558;  Peele  r.  Northcote,  Ibid,  478;  JNIon-is  r.  Cleas- 
by,  4  TsL  &  Selw.  5(JG;  Thompson  r.  Perkins,  3  Iilason,  232;  2  Kent.  Com.  G24-5; 
Story  on  Agency,  Sec.  215;  Lewis  v.  Bohcmc,  33  Md.  412. 


337  FACTORS    AND    BROKERS.  §  278 

or  commission  merchant,  the  principal  is  presumed  to  intrust 
them  to  his  agent  for  disposal,  in  conformity  with  established 
usages  in  the  contemplated  market,  and  to  confer  on  him  the 
means  necessary  and  proper  for  the  accomplishment  of  the  pur- 
poses of  the  consignment,  by  the  various  means  which  arc  jus- 
tified or  alloAved  by  the  usages  of  trade,  so  that  under  an  ordin- 
ary consignment,  Avithout  special  restriction,  it  will  be  under- 
stood that  the  factor  may  sell  upon  credit  as  well  as  for  cash,  to 
the  extent  justified  by  the  usages  of  trade  and  for  the  usual 
period  of  time. 

The  principal  is  presumed  to  have  authorized  the  agent  to 
sell  in  the  usual  manner  in  Avhich  similar  goods  are  disposed  of 
in  the  special  market.^ 

§  273.  The  factor  may  pledge  goods  consigned,  when. — 

The  necessities  of  trade,  which  have  given  rise  to  the  employ- 
ment of  factors,  are  such  that  certain  expenses  must  necessarily 
be  incurred  by  this  agent  of  the  seller  ;  and  in  view  of  that  fact. 
the  consignor  is  presumed  to  have  clothed  his  agent  with  power 
to  pay  such  charges  upon  the  goods  as  are  requisite  to  further  the 
objects  of  the  consignment. 

It  is  customary  for  the  factor  to  pay  inland  freight,  forward- 
ing charges,  and  similar  expenses  incident  to  the  transit  of  the 
goods  to  him ;  advances  are  often  made  by  the  consignee  to  the 
producer,  and  it  is  understood  by  the  parties  that  out  of  the 
money  realized  from  sales,  these  disbursements,  and  the  factor's 
commissions,  are  to  be  paid. 

The   relation  of  the  factor  to  his  principal  is  such  that,  as  a 

1  Story  on  Agency,  Sec.  60;  Dunlap's  Paley  on  Agency,  Sec.  201;  Ibid,  207; 
Houghton  V.  Mathews,  3  Bos.  &  Pul.  489.  "The  credit  given  by  the  factor  must, 
however,  be  reasonable  and  customary;  and  the  security  which  he  takes  from  a 
purchaser  must  be  of  such  a  nature  as  that  the  principal  may  avail  himself  by 
the  exercise  of  reasonable  diligence,  and  without  being  exposed  to  extraordin- 
ary risk  or  trouble."  (Dunlap's  Paley  on  Agency,  207,  Xote  1 ;  Barton  v.  Ladok, 
Bulstr.  10.3. ) 

" 'While  no  statute  or  principle  of  public  policy  intervenes,  but  a  rule  of  law 
is  a  mere  jjrivilege  which  may  be  waived,  such  waiver  may  as  well  be  by  a  cus- 
tom known  to,  and  acquiesced  in,  by  the  j^arties,  as  by  an  express  contract." 
(Colket  V.  Ellis,  Court  of  Com.  Pleas  of  Phil.  ISIarch,  1875.)  A  custom  or  usage, 
which  is  relied  upon  as  explanatory  of  the  under.standing  of  parties  to  a  con- 
tract, must  not  be  repugnant  to  the  terms  of  the  contract,  nor  to  the  law.  (Ran- 
dall V.  Smith,  63  Me.  105.) 

Farm— 22. 


§§  279-80  FACTOES    AXD    BROKERS.  S38 

o-encral  rule,  the  service  of  the  former  is  not  rendered  upon  tlic 
credit  of  the  hatter,  as  in  an  ordinary  employment,  and  it  is  sel- 
dom that  the  personal  responsibility  of  the  consignor  is,  by  the 
factor,  relied  upon.  The  credit  extended  by  the  factor  is  iipon 
the  expectation  that  he  shall  be  paid  from  the  sale  of  the  pro- 
duce, and  that  such  is  the  understanding:  the  consignor  is  aware  ; 
hence,  by  sending  the  goods  to  the  factor,  the  consignor  is  as- 
sumed to  have  acted  with  reference  to  this  imderstanding,  and 
to  have  contracted  with  the  consignee  in  such  manner  as  to  cre- 
ate in  him  a  special  property  in  the  articles  consigned,  sufficient 
to  protect  himself  in  the  premises.  Tliis  special  property  being  cre- 
ated, the  factor  may  pledge  goods  consigned  to  him  for  advances 
made  to  his  principal,  or  for  the  purpose  of  raising  money  for 
him,  or  in  order  to  raise  money  to  reimburse  himself  to  the 
amount  of  his  own  lien,  or  for  the  payment  of  duties,  or  other 
charge  or  purpose  allowed  by  law  or  justified  by  established 
usages  of  trade.^ 

§  279.   The  factor  cannot  pledge  goods  for  his  own  debts 

which  have  been  consigned  to  him  for  sale,  or  in  any  manner 
convert  the  property  of  the  principal  to  his  own  use  ;  he  holds 
himself  out  to  the  public  for  employment  in  a  specified  capacity, 
and  the  acceptance  of  his  services  implies  a  limit  to  the  trust 
to  the  extent  usual  in  such  employment.  The  power  of  sale 
does  not  authorize  the  factor  in  disposing  of  the  principal's  prop- 
erty by  way  of  bai'ter,  or  in  any  other  way  than  by  usual  course 
of  trade,  a  departure  from  which  will  render  the  factor  directly 
liable  for  conversion,  and  he  will  be  liable  to  the  principal  for 
the  value  of  the  goods.^ 

§  280.  Innocent  pledgee  of  consigned  goods  not  pro- 
tected.— There  is  nothing  in  the  consignment  of  goods  to  a 
factor  for  sale  which  divests  the  title  of   the  consignor  to  any 

1  story  on  Agency,  113:  Tultney  v.  Keymer,  3  Esp.  182;  2  Kent's  Com.  625-8. 

■-  2  Kent's  Com.  G2G.  "  Though  a  factor  may  sell,  and  bind  his  principal,  he 
cannot  pledge  the  goods  as  a  security  for  his  own  debt,  not  even  though  there  be 
the  formality  of  a  bill  of  parcels  and  a  receipt.  The  principal  may  recover  the 
goods  of  the  pawnee;  and  his  ignorance  that  the  factor  held  the  goods  in  the 
character  of  a  factor,  is  no  excuse."  (Kennedy  v.  Strong,  li  Johns.  128;  Roder- 
iguez  V.  Hoffman,  5  Johns.  Ch.  417:  Story  on  Agency,  113;  Dunlap's  Paley 
on  Agency,  207,  and  Note  1. 


839  FACTORS    AND    BROKERS.  §  281 

extent,  other  or  further  than  by  tlie  creation  of  the  factor's  lien 
for  advances  and  commissions.  The  ownership  remains  the 
same,  until  an  actual  sale  divests  the  title  in  the  manner  contem- 
plated. When  the  sale  is  consummated,  it  is  the  act  of  tlie 
owner,  by  his  agent,  the  factor;  and  all  parties  are  justified  in 
dealing  with  the  agent,  as  such,  to  the  extent  of  his  authority 
to  sell,  which  may  be  implied  from  his  having  the  goods  in  his 
hands,  ostensibly  for  that  purpose.  But  there  is  nothing  to  jus- 
tify the  belief  that  he  is  clothed  with  power  to  act,  Avith  refer- 
ence to  the  goods,  in  any  manner  other  than  that  which  is  usual 
in  making  sales,  and  he  who  deals  with  a  factor  in  any  other  way 
does  so  at  his  peril.  The  title  to  property  can  be  parted  with 
by  the  owner's  consent,  and  the  pledgee  not  only  has  no  proof 
of  the  owner's  assent  to  the  pledge,  but  he  ought  to  regard  the 
attempt,  by  the  factor,  to  so  dispose  of  goods,  as  notice  of  a 
wrongful  conversion  by  him.^ 

§  281.  Consignor  may  recover  of  pledgee  value  of 
goods. — If  consigned  goods  be  pledged  by  the  factor  for  his 
own  debt,  and  the  pledgee  sell  them,  the  owner  may  recover  of 
the  pledgee  the  value  of  the  pro^^erty  so  pledged  and  sold. 
The  title  to  consigned  goods  being  in  no  wise  affected  by  a 
pledge  of  them  by  the  factor,  the  owner  has  the  same  rights 
against  the  pledgee,  so  far  as  following  his  property  is  con- 
cerned, which  he  had  against  the  factor.  He  has  a  right  to 
take  his  property,  by  paying  such  charges  as  he  has  assented 
to;  and  if  he  find  his  goods  in  the  hands  of  the  pledgee,  he 
may  recover  them,  upon  payment  of  such  charges  as  the  factor 
might  justly  make.  If,  however,  the  pledgee  refuses  to  deliver 
the  goods,  or  has  so  disposed  of  them  that  they  cannot  be 
reached,  he  is  deemed  to  have  converted  them  to  his  own  use, 
to  have  purchased  them  at  market  value,  and  the  owner  may 
recover  that  value  from  him.^ 

1  Story  on  Agency,  225;  Paley  on  Agency,  ^0-2;  Ibid,  218;  Boucbont  v.  Gold- 
smid,  5  Ves.  211;  Boyaon  v.  Coles,  G  M.  &  Selw.  14;  Warner  v.  Martin,  11  How- 
ard, (U.  S.)  209;  Evans  v.  Porter,  2  Gall.  13. 

2  Patterson  v.  Tasli,  2  Strange,  1178;  Daubigny  v.  Duval,  5  T.  R.  G04;  McCombe 
r.  Davis,  6  East,  538;  Pickering  v.  Bask,  15  East,  38;  Mason  v.  Amringe,  1  Mass. 
442;  Rodriguez  v.  Hefferman,  5  Johns.  Ch.  417;  Kennedy  v.  Strong,  14  Johns. 
128;  Buckley  v.  Packard,  20  Ibid,  421;  Stearns  r.Wilson,  3  Denio,  473;  Walker  v. 
Wetmore,  1  E.  D.  Smith,  25;  Kinder  v.  Shaw,  2  Mass.  398;  Florence  Sewing 
Machine  Co.  v.Warford,  1  Sweeney,  (N".  Y.)  433. 


§§  282-3  FACTORS    AND    BROKERS.  340 

§  282.  Ignorance  that  the  goods  -were  consigned  no  de- 
fense.— It  makes  no  difference  whether  or  not  the  pledgee  kneAV 
that  the  factor  had  the  goods  on  consignment. 

Commercial  usage  has  created  the  business  of  factors.  They 
are  a  business  class  as  distinct  as  any  other,  and,  a«  a  general 
rule,  ojicnly  act  as  commission  merchants  in  the  sale  of  goods 
which  belong  to  other  persons.  The  consignor  cannot  know 
what  is  being  done  with  his  property,  and  he  has  a  perfect  right 
to  leave  it  in  a  factor's  hands  for  sale  without  such  constant  su- 
pervision as  would  obviate  the  necessity  of  the  employment  of 
such  an  agency. 

The  person  who  deals  with  a  factor,  presumed  as  he  is  to 
know  the  law,  is  aware  that  he  may  have  been  intrusted  with 
the  property  for  sale  without  being  clothed  with  any  other 
power  of  disposal  of  it. 

If  he  knows  that  the  factor  is  pledging  goods  which  do  not 
belong  to  him,  he  aids  him  in  wrong-doing  by  receiving  the 
pledge,  and  therefore  merits  no  protection.  If  he  did  not  know 
it,  he  is  deemed  to  have  been  put  upon  inquiry  by  the  factor's 
occupation,  and  might  have  informed  himself,  and  in  either 
event  the  rule  remains  the  same.  The  owner  may  follow  his 
property  or  recover  its  value. ^ 

§  283.   Consigned  goods  not  liable  for  factor's  debts. — 

An  attachment  or  other  legal  process  against  the  property  of 
the  factor  is  powerless  as  against  the  property  which  he  holds 
on  consignment  or  for  sale  on  account  of  another  person.  The 
absence  of  power,  on  his  part,  to  avail  himself  of  the  goods  to 
increase  his  credit  by  pledging  them  for  his  own  debt,  limits 

1  story  on  Agency,  225.  "That  a  person  dealing  with  a  factor  or  broker  is 
bound  to  know  that,  by  law,  a  factor  or  broker,  although  a  general  agent,  is  not 
clothed  with  authority  to  pledge,  deposit,  or  transfer  the  proiierty  of  his  prin- 
cipal for  his  own  debts,  and,  if  lie  receives  such  a  deposit  or  pledge,  the  title  is 
invalid,  and  the  property  may  be  reclaimed  by  the  iirincijial;  and,  in  such  case, 
it  is  wholly  iiumat(!rial  whether  the  pledgee  knew  that  the  party  with  whom  lie 
was  dealing  was  a  factor  or  broker  or  not.  If  lie  knew  the  fact,  he  was  also 
bound  to  know  the  law  applicable  to  it.  If  he;  did  not  know  the  fact,  his  o^^^l 
ignorance  would  not,  ordinarily,  enlarge  his  rights  against  the  principal,  since 
the  latter  has  not  held  him  out  to  the  public  as  having  such  an  authoritj'." 
(Wright  V.  Solomon,  19  Cal.  04;  Bonito  v.  Mosquei-a,  2  Bosw.  427;  Paley  on 
Agency,  213,  21G,  218 ;  Newson  v.  Thornton,  6  East,  17 ;  Benny  v.  Rhodes,  18  Mo. 
147;  Hoffman  v.  Noble,  (J  Mete.  G8;  Ilolton  v.  Smith,  G  N.  H.  44G.) 


341  FACTORS    AND    BROKERS.  §  283 

the  rights  of  his  creditors  against  property  ostensibly  his  OAvn, 
but  which,  in  truth,  he  hokls  as  factor  for  another  ;  and  his 
creditors  have  no  greater  power  than  he  possesses.  The  reason 
why  the  factor  cannot  barter  the  goods,  or  pledge  them  for  his 
debt,  is  that  they  are  intrusted  to  hmijor  sale  in  the  usual  mode, 
and  he  cannot  pledge  or  barter  them,  because  it  is  out  of  the  usual 
and  ordinary  course  of  dealing  for  him  to  do  so  ;  and  the  reason 
of  the  rule  holds  good  as  to  all  legal  processes  against  the  fac- 
tor personally.  In  case  the  factor  becomes  bankrupt,  as  to  what 
would  be  the  rights  of  the  assignee  to  the  goods  as  part  of  the 
assets,  the  rule  is  the  same,  and  the  property  is  held  for  the 
principal.  By  the  Statute  of  21  Jac.  Chap.  19,  Sees.  10,  11, 
it  was  declared  that  if  any  person  shall  become  bankrupt,  and 
shall,  at  such  time,  by  the  consent  and  permission  of  the  true 
owner,  have  in  his  possession,  order,  and  disposition,  any  goods 
or  chattels,  whereof  he  shall  be  reputed  owner,  and  take  upon 
himself  the  sale,  alteration,  or  disposition  as  owner,  such  goods 
shall  be  liable  to  the  bankrupt's  debts. 

The  case,  hoAvever,  of  a  factor  having  property  of  his  prin- 
cipal in  his  possession,  though  not  in  the  act  excepted  from  its 
provisions,  has  always  been  considered  as  an  exceptional  case, 
and  not  to  be  affected  by  the  law,  the  reason  for  this  being  the 
obvious  one,  that  as  factors  must,  by  the  course  of  trade,  have 
the  goods  of  other  people  in  their  possession,  it  does  not,  there- 
fore, hold  out  a  false  credit,  nor  carry  to  the  understanding  of 
the  world  the  reputed  ownership.^ 

1  "  It  may  be  laid  down,  as  a  general  rule,  that  when  the  property  remitted  by 
the  principal,  or  acquired  for  him  by  his  order,  is  fomid  distinguishable  in  tiie 
hands  of  the  factor,  capable  of  being  traced  by  a  clear  and  connected  chain  of 
identity,  in  no  one  link  of  it  degenerating  from  a  specific  trust  into  a  general 
debt,  the  creditors  of  the  factor  who  has  become  banlvrupt  liave  no  right  to  the 
specific  property,"  (1  Bouv.  Law  Die.  570)  even  where  it  is  money  in  tlic  factor's 
hands.  (Cook's  Bank  Law^s,  400;  L' Apostrophe  r.  Plaistrier,  1708;  1  P  Wms.  318; 
1  Atk.  175;  Ex  parte  Dumas,  1  Atk.  234;  Gardner  v.  Eowe,  5  Russ.  262;  Ontario 
Bank  v.  Mumford.  2  Barb.  Ch.  596;  Fletcher  v.  Morey,  2  Story's  Rep.  555, 
564.)  It  may,  however,  notwithstanding  this  general  principle,  be  a  ques- 
tion of  fact  whether  such  a  false  credit  might  not,  under  certain  circumstan- 
ces, be  acquired  by  the  factor  as  would  vitiate  the  rule;  as  where  the  goods 
were  permitted  to  remain  in  the  factor's  liands  for  so  great  a  lengtli  of  time,  or  he 
be  allowed  to  treat  them  in  a  manner  unusual,  or  such  as  would  present  indicia 
of  ownership  so  great  as  to  enable  him  to  perpetrate  a  fraud.  It  miglit  be  said 
that  another  rule,  viz.,  that  he  who  culpably  or  negligently  places  a  person  in 


§  284  PACTOES    AND    BROKERS.  342 

§  234.  The  factor  must  obey  instructions  of  his  princi- 
pal, —  A  factor,  who  lias  made  no  advances  and  incurred  no 
liability  on  account  of  goods  consigned  to  him,  is  bound  to  obey 
the  orders  of  his  principal  in  respect  to  the  time  and  manner  of 
selling.  But  if  he  has  made  advances,  or  otherwise  incurred  a 
liability  upon  the  credit  of  the  goods,  whereby  he  has  acquired 
a  special  property  therein,  he  has  a  right  to  sell  enough  to  re- 
imburse his  advances,  or  meet  his  liabilities,  unless  restrained 
by  some  agreement  with  the  consignor.  The  right,  however,  is 
limited  to  the  protection  of  his  own  interest  in  the  goods  con- 
signed, and  is,  to  that  extent,  an  exception  to  the  general  rule 
that  an  agent  is  bound  by  the  instructions  of  his  principal,  and 
disobeys  them  at  his  peril. ^ 

The  same  general  principle  extends  to  the  matter  of  price  at 
which  the  goods  may  be  sold.  The  general  practice  is,  how- 
ever, to  rely  upon  the  factor's  judgment  and  expei'ience,  and 
hence  has  resulted  a  usage  so  well  established  that  nothing  short 
of  positive,  distinct  instructions  will  be  construed  as  limiting 
the  consigiiee  to  sales  made  at  specified  rates.^ 

In  the  matter  of  remittances,  the  law  holds  the  consignor  to 
strict  accountability.  If  he  accept  drafts  as  money,  in  the 
usual  course  of  trade,  he  must  forward  them  with  reasonable 
diligence,  and  any  loss  resulting  from  his  neglect  to  do  so  he 
must  answer  for.  And  it  is  the  general  duty  of  the  factor  to 
see  that  sales  made  by  him  be  wholly  in  the  interest  of  his 
employer.^ 

such  position  that  he  may  impose  upon  a  third  party  must  abide  the  conse- 
quences. (Dunlap's  Paley  on  Agency,  8.3;  7  Yin.  Ab.  89;  Copemann  v.  Galkmt, 
MS.  Rep.  Trin.  ITKi.) 

1  Field  V.  Farrington,  10  AVall.  141 ;  Ward  v.  Bledsoe,  32  Tex.  251.  "Although, 
as  a  general  rule,  factors  are  bound  to  obey  all  orders  of  their  principals 
respecting  the  time  and  mode  of  sale,  yet,  when  they  have  made  large  ad- 
vances or  incurred  ex])ense  on  account  of  the  consignment,  tlie  principal 
cannot,  by  any  subsequent  orders,  control  their  right  to  sell  at  such  time  as, 
in  the  exercise  of  a  sound  discretion,  and,  in  accordance  with  the  usage  of 
trade,  they  may  deem  best  to  secure  indemnity  to  themselves,  and  to  pro- 
mote the  interest  of  the  consignor."  (Weed  v.  Adams,  37  Conn.  378;  Hein- 
kin  V.  Barbrey,  40  Ga.  249.) 

2  Dunlap's  Paley  on  Agency,  13-20;  Hinde  v.  Smith,  G  Lans.  N.  Y.  4G4;  Whetslan 
V.  Lynch,  05  Barb.  327. 

3  Farmers'  Bank  v.  Sprague,  52  N.  Y.  COS;  Chandler  v.  Hoyle,  58  111.  4G;  Win- 
ter V.  Coit,  7  N.  Y.  288. 


843  rACTORS  and  beokers.  §§  285-6 

§  285.   The  purchase  by  a  factor  of  goods  consigned  to 

him  is  not  favored  by  law.  The  general  rule  of  agency  applies, 
that  an  agent  can  only  deal  with  the  subject  of  the  trust  in  the 
manner  indicated  by  the  creation  of  the  trust. 

Agents,  from  the  nature  of  their  employment,  become  aware 
of  the  controlling  circumstances  of  the  business  of  their  prin- 
cipals ;  and,  in  the  case  of  a  factor,  he  may  well  be  informed 
of  circumstances,  affecting  the  value  of  the  property  con- 
signed to  him,  of  Avhich  the  consignor  is  not  aware. 

Moreover,  the  law  presumes  superiority  and  influence  on  the 
part  of  the  agent,  and  there  must  not  only  be  the  most  absolute 
good  faith  on  the  part  of  the  factor  who  himself  buys  his  con- 
signor's goods,  but  the  burden  of  proof  is  upon  him  to  show 
such  good  faith.  The  purchase  is  presumed  to  be  injurious  to 
the  person  who  has  created,  as  against  him  who  has  assumed, 
the  trust ;  and,  as  against  the  factor,  the  consignor  may  insist 
upon  the  sale  being  set  aside,  even  without  showing  any  actual 
injury.i 

§  286.  A  factor  is  not  an  insurer,  but  must  take  reason- 
able care  of  goods  consigned  to  him,  and  hence  he  is  not  an- 
swerable for  the  safety  of  goods  which  he  has  in  his  charge. 
Factors,  and  other  bailiffs  to  manage  for  hire,  are  held  liable 
only  to  a  reasonable  exercise  of  care  and  diligence  in  their 
vocation ;  hence,  they  are  not  liable  for  any  loss  by  theft,  rob- 
bery, fire,  or  other  accident,  unless  it  results  from  their  own 
negligence.  If  they  act  with  reasonable  diligence  and  care, 
such  as  a  prudent  man  would  ordinarily  exercise  in  the  conduct 
of  his  own  affairs,  and  in  good  faith  to  their  employers,  they 
are  protected. 

1  Kubidoex  v.  Parks,  48  Cal.  21S.  "  Agents,  from  tlie  nature  of  their  employ- 
ment, are  subject  to  the  rule  which  governs  the  relation  of  trustee  and  cestui 
que  trust;  and  an  act  of  the  agent,  with  respect  to  the  subject-matter  of  the 
agency,  injurious  to  the  principal,  may  be  avoided  by  the  principal,  as  between 
themselves. 

"The  agent  and  principal  are  not  absolutely  prohibited  from  dealing  witli 
each  other,  in  respect  to  the  subject-matter  of  the  agency  or  trust;  but  in  all 
their  dealings  with  each  other  the  utmost  good  faith  is  required,  and  the  burden 
of  proof  is  on  the  agent  to  show  affinnatively  that  he  acted  in  good  faith,  fairly, 
and  honestly."  (Hilliard  on  Vendors,  384;  4  Kent's  Com.  438;  Terry  v.  Bank  of 
Orleans,  9  Paige,  648,  662;  Copeland  i'.  Insurance  Co.  6  Pick.  203;  1  Story's  Eq. 


§  287  FACTORS    AXD    BROKERS.  344 

If,  however,  any  loss  occurs  by  reason  of  their  negligence, 
which  might  have  been  prevented  by  the  exercise  of  ordinary 
care  or  diligence  on  their  part,  and  more  especially  if  loss  result 
to  the  principal  by  wrong-doing  or  lack  of  good  faith  toward 

him  b}^  the  agent,  the  factor  is  responsible.^ 

• 

§  287.  The  objection  to  the  employment  of  middle-men 

is  not  a  novel  one,  which  remained  to  be  discovered  in  modern 
times ;  it  was  more  distinctly  recognized  under  common  law 
than  it  is  at  present  by  the  statutes.  At  common  law,  the  buy- 
ing or  engaging  of  any  merchandise  or  victual,  which  -svas  in- 
tended for  sale  in  open  market,  and  so  preventing  the  king's 
subject  from  obtaining  the  necessaries  of  life  at  fair  prices,  or 

Jut.  332;  Campbell  v.  Walker,  6  Vesey,  680;  Hardeiiburgh  v.  Bacon,  33  Cal.  377; 
Story  on  Agency,  308,  328;  Tryn  v.  SaltiLS,  18  How.  Pr.  Rep.  518.) 

1  Dunlap's  Paley  on  Agency,  Sec.  IG  et  seq. ;  Story  on  Bailments,  455.  An 
agent,  by  improperly  retaining  the  funds  of  his  princijial,  or  other  unfaithful- 
ness to  his  trust,  may  forfeit  his  right  to  his  commissions.  (Sumner  v.  Reich- 
eniker,  9  Kan.  320;  Porter  r.  Silvers,  35  Ind.  295.) 

An  agent,  undertaking  any  business  for  another,  is  disabled,  in  equity,  from 
dealing  in  the  matter  of  tlie  agency  upon  his  own  account,  or  for  his  o^\^l  ben- 
efit ;  and  if  he  do  so  in  his  own  name,  he  will  be  considered  as  holding  in  tru.st 
for  his  principal.     (Krutz  v.  Fisher,  8  Kan.  90;  Fisher  v.  Krutz,  9  Ibid,  501.) 

Story  on  Agency,  Sec.  18G.  "A  factor  is  bound,  not  only  to  good  faith,  but  to 
reasonable  diligence.  It  is  not  sufficient  that  he  has  been  guilty  of  no  fraud,  or 
of  such  gross  negligence  as  would  carry  with  it  the  insignia  of  fraud.  He  is 
required  to  act  with  reasonable  care  and  prudence  in  his  employment,  and  to 
exercise  his  judgment,  after  proper  inquiries  and  precautions.  If  he  shut  his 
eyes  against  the  light,  or  sell  to  a  jierson  without  inquiry,  when  ordinary  dili- 
gence would  have  enabled  him  to  learn  the  discredit  or  insolvency  of  the  party, 
he  will  not  be  discharged  from  resiionsibility  to  his  princi])al." 

In  the  absence  of  special  directions,  the  factor  is  supposed  to  bo  under  in- 
structions to  sell  for  a  fair  market  price,  to  ascertain  which  ho  has  contracted; 
so  that  a  sale,  by  him,  at  a  jirice  materially  less  than  that,  is  j^rima  facie  evi- 
dence of  eitlier  negligence  or  want  of  good  faitli,  either  of  wliich  being  estab- 
lished, the  factor  must  make  good  to  his  principal  the  loss  occasioned  thereby. 
(Bigelowf.  Walker,  24  Vt.  149;  Deshler?).  Beers,  32111.  308.) 

Usage  adopted  by  a  certain  class  of  factors,  as  to  the  disposition  of  the 
funds  of  their  principals,  will  not  relieve  such  a  duty  or  a  liability,  Avhich  the 
law  would  otherwise  impose  on  him,  unless  he  shows  his  priucij^al  had  knowl- 
edge of  such  usage,  or  that  he  assented  to  that  mode  of  doing  his  business. 
(Farmers'  Bank  v.  Sprague,  52  N.  Y.  005.) 

But  it  was  lately  held  tliat  a  remittance,  by  a  factor  in  Buffalo  to  his  jirincipal 
in  Illinois,  of  a  draft  from  a  banker  in  Buffalo  on  a  house  in  ^Slew  York  City, 
on  the  day  of  the  sale  of  consigned  goods,  in  compliance  with  the  custom  of 
commission  merchants  in  Buffalo,  was  an  exercise  of  due  diligence,  and,  upon 
protest,  to  exempt  the  factor  from  liability  for  the  loss.     (Chandler  c.  Iloyle,  58 

ni.  46.) 


345  FACTORS    AXD   BROKERS.  §  288 

doing  anything  to  dissuade  persons  from  bringing  their  goods  to 
market,  was  made  a  felony,  under  tlie  name  of  "  forestalling," 
and  rendered  the  perpetrators  liable  to  fine  and  imprisonment, 
because  they  made  the  market  dearer  to  fair  traders.^ 

In  the  Roman  law,  persons  who  monopolized  grain,  and  other 
produce  of  the  earth,  were  called  dardanarii,  and  were  variously 
punished.^ 

The  modei'n  objection  is  differently  stated  to  be,  that  the  ne- 
cessity of  the  factor's  support  depreciates  the  farmer's  gains,  but 
it  substantially  amounts  to  the  same  as  that  recognized  under 
the  common  and  civil  law ;  and  although  such  interference  by 
middle-men  is  no  longer  punished  as  crime,  the  law  still  recog- 
nizes the  evil  and  fixes  the  tax  upon  the  dealer,  and  not  upon 
the  farmer,  to  accomplish  the  same  result  which  our  ancestors 
and  the  framers  of  the  Roman  law  aimed  to  regulate  by  fine 
and  imprisonment ;  and  a  condition  of  tiling  is  manifest,  not 
wholly  dissimilar  to  that  where  licenses  are  granted  to  sell 
liquor,  and  pursue  similar  vocations  recognized  as  being  injuri- 
ous to  the  community,  when  prohibitory  statutes  have  been 
found  inadequate  or  inexpedient. 

§  288.  A  farmer  may  sell,  without  license,  the  produce 
of  his  farm,  and  dispose  of  that  of  his  neighbors,  so  long 
as  he  does  not  devote  himself  principally  to  trade.  The  tend- 
ency of  civilization  is  to  subdivide  labor  into  distinct  employ- 
ments, and  so  long  as  the  minuteness  of  the  subdivisions  does 
not  over-burden  the  producers  by  compelling  them  to  support 
an  unfair  number  of  nonproducers,  this  may  be  well  for  the 
community  ;  but  this  reasoning  only  can  apply  when,  by  subdi- 
vision into  special  branches  of  industry,  some  excellence  can  be 
attained  in  a  matter  of  interest  and  benefit  to  the  community. 
Hence,  all  healthy  legislation  will  encourage  the  discontinuance 
of  employment  of  those  who,  by  their  labor,  add  nothing  to  the 

1  Coke,  3  Inst.  196;  Bacon  Abr. ;  1  Russel,  Crimes,  1G9;  4  Bl.  Com.  158.  So,  also, 
tie  offense  of  "Regrating,"  defmed  by  Statute  of  5  and  6  Edward  I,  Chap  14: 
"The  buying  of  corn,  or  other  dead  victual,  in  any  market,  and  selling  it  again 
in  the  same  market,  or  within  foin-  miles  of  the  place."  This  was  punishable, 
because  such  practices  enhanced  the  price  of  provisions,  as  every  successive 
seller  must  make  a  profit,  to  be  paid  by  the  producer. 

2  Dig.  47,  11,  G. 


§  288  PACTOES  AND  BROKEES.  346 

commonwealth  by  production  at  home  or  importation  from 
abroad,  and  no  more  efficient  way  to  accomplish  this  end  has 
appeared  than  by  removing  all  barriers  between  producers  and 
consumers,  by  encouraging  their  direct  dealing  through  appro- 
priate legislation,  which  has  generally  been  construed  by  the 
Courts  most  liberally  in  favor  of  farmers.^ 

1  Barton  v.  Morris  et  al.  Supreme  Court  of  Penn.  July  3d,  1875.  "A  farmer  who 
sells  the  i^roducts  of  his  own  farm,  and  occasionally  that  of  his  neighbor,  cannot 
be  rated  as  a  dealer  in  goods,  commodities,  within  the  meaning  of  the  Mercan- 
tile Tax  Law." 

"Most  of  the  occupations  of  life  trench  on  each  other,  and  almost  every  one 
performs  some  function  which  belongs  to  a  business  other  than  his  o%ati.  If,  by 
reference  to  these  occasional  and  incidental  acts,  his  imrsuit  is  to  be  determined, 
he  could  be  rated  and  taxed  under  very  many  heads.  The  law,  however,  re- 
gards his  permanent  and  regular  occupation,  and  fixes  his  liability  by  that,  and 
not  by  some  act  which  naturally  grows  oiit  of  it.  He  may,  of  course,  have  two 
distinct  callings,  and  render  himself  liable  to  taxation  under  both." 

"A  dealer  is  one  wlipse  business  it  is  to  buy  and  sell.  It  is  a  term  of  trade, 
having  as  distinct  and  well  known  signification  as  merchant,  mariner,  or  broker. 
He  is  the  middle-man  who  stands  between  the  producer  and  consumer;  his 
profit  is  not  derived  from  selling  the  produce  of  his  farm,  but  from  his  skill  in 
knowing  when  to  buy  and  how  to  sell  the  products  of  others."  (Ibid,  Xorris 
V.  Commonwealth,  27  Penn.  St.  41M. ) 

"A  dealer  in  the  ^JOimlar,  and,  therefore,  in  the  statutory  sense,  is  not  one  Avho 
buys  to  keep,  or  makes  to  sell,  but  one  who  buys  to  sell  again."  (Common- 
wealth V.  Campbell,  33  Penn.  St.  380. ) 

"It  is  only  when  he  makes  selling  his  regular  and  constant  business  that  he 
should  be  required  to  pay  the  tax."     (Int.  Rev.  Record,  Vol.  11,  i>.  28.) 

"In  all  enlightened  legislation,  the  effort  is  made  to  bring  the  i>roducer  and 
consumer  together,  and  probably  nothing  has  been  done  more  to  give  cluiracter 
to  our  markets,  and  to  jiromote  the  health  of  our  people,  than  the  efforts  we 
have  always  made  to  that  end."  (Barton  v.  Morris,  Sup.  Ct.  Penn.  July  od, 
1875.) 

But  in  "Welton  v.  State  of  Missouri,  Supreme  Court  of  the  United  States,  Feb- 
ruary, 1876,  it  was  held:  "  1.  A  license  tax  required  for  the  sale  of  goods  is  in 
fact  a  tax  upon  the  goods  themselves.  2.  A  statute  of  Missouri,  wliicli  requires 
the  pajTnent  of  a  license  tax  from  persons  who  deal  in  the  sale  of  goods,  wares, 
and  merchandise,  which  are  not  the  growtli,  produce,  or  manufactiu-e  of  the 
State,  by  going  from  place  to  place,  to  sell  the  same  in  the  State,  and  re- 
quires no  such  license  tax  from  persons  selling  in  a  similar  way  goods  which 
are  the  growth,  produce,  or  manufacture  of  the  State,  is  in  conflict  witli  the 
power  A'ested  in  Congress  to  regulate  commerce  with  foreign  nations  and 
among  tlie  several  States.  3.  Tliat  jiower  was  AX'sted  in  Congress  to  insure 
uniformity  of  commercial  relation  against  discriminating  State  legislation.  It 
covers  jirojierty  wliich  is  trauspoi'ted  as  an  article  of  commerce  from  foreign 
countries,  or  among  the  States,  from  hostile  or  interfering  legislation,  until  it 
has  mingled  with  and  become  part  of  the  general  property  of  tlie  country,  and 
protects  it,  even  after  it  has  entered  a  State,  from  any  burdens  imjiosed  by  the 
reason  of  its  foreign  origin.  4.  Tlie  action  of  Congress  in  prescribing  the  rules 
to  govern  inter-State  commerce,  is  equivalent  to  its  decree  that  such  commerce 
shall  be  free  from  any  restrictions." 


347 


CARRIERS. 


§  289 


§  289, 
§  290. 
§  291 
§  292. 
§  293. 
§  294. 
§  295 


CHAPTER  XXV. 

CARRIERS. 

Common  carrier  an  insurer,  to  what  extent. 

Common  carrier  not  an  insurer,  when. 

Common  carriers  not  insurers  of  live-stock. 

Right  of  carriers  to  limit  responsibility. 

Limitation  of  carrier's  resi^onsibility  by  special  contract. 

The  carrier  has  a  lien. 

Coumion  carrier  must  show  no  partiality. 


§  289.   The  common  carrier  an  insurer,  to  what  extent. 

— The  necessities  of  commercial  intercourse  between  the  vari- 
ous members  of  the  body  politic  naturally  have  given  rise  to 
the  business  of  transporting  merchandise ;  and  the  relation 
of  the  parties,  as  shippers  of  goods  and  carriers  of  them,  and 
the  peculiar  circumstances  affecting  this  business  and  these  re- 
lations, has  given  rise  to  and  characterized  the  law  of  common 
carriers. 

The  term  has  become  so  generally  understood  to  be  those 
who  carry  passengers  and  goods  for  hire  as  to  require  no  defini- 
tion, but  the  principles  of  law  which  affect  this  occupation  may 
merit  attention.  The  public  safety,  perhaps  more  especially  in 
the  transportation  of  merchandise,  has,  through  the  law,  charged 
upon  the  carrier  responsibility  against  all  losses  except  such  as 
result  from  "  acts  of  God  "  and  "  of  enemies  of  the  king  " ;  these, 
human  wisdom  and  strength  cannot  guard  against ;  but,  up  to 
the  point  indicated,  the  common  carrier  is  an  insurer.  The 
rule,  and  reason  for  the  rule,  cannot  be  given  better  than  in  the 
language  of  Mr.  Chief  Justice  Best : 

"  "When  goods  are  delivered  to  a  carrier  they  are  usually  no 
longer  under  the  eye  of  the  owner ;  he  seldom  follows,  or  sends 
any  servants  with  them  to  their  place  of  destination.  If  they 
should  be  lost  or  injured,  by  the  grossest  negligence  of  the  car- 
rier or  his  servant,  or  stolen  from  them,  or  by  thieves  in  collu- 
sion with  them,  the  owner  would  be  unable  to  prove  either  of 


§  290  CARRIERS.  348 

these  causes  of  loss.  His  witnesses  must  be  the  carriers'  ser- 
vants ;  and  they,  knowing  that  they  could  not  be  contradicted, 
would  excuse  their  master  and  themselves.  To  give  due  secur- 
ity to  ])roperty,  the  law  has  added  to  that  responsibility  of  a  car- 
rier, Avhich  arises  immediately  out  of  his  contract  to  carry  for  a 
reward,  that  of  taking  all  reasonable  care  of  it,  the  responsibil- 
ity of  an  insurer.  From  his  liability  as  an  insurer  the  carrier 
is  only  to  be  relieved  by  two  things,  both  so  well  known  to  all 
the  country,  when  they  happen,  that  no  person  would  be  so 
rash  as  to  attempt  to  prove  that  they  had  happened  wdien  they 
had  not,  namely,  the  act  of  God,  and  the  king's  enemies."  ^ 

§  290.   The  common    carrier    not  an  insurer,  when. — 

Notwithstanding  the  rule  that  the  carrier  is  an  insurer  against 
losses  not  occurring  from  the  act  of  God  or  the  enemy  of  the 
king,  it  must  be  imderstood  that  he  cannot  be  held  responsible 
for  ordinary  wear  and  tear,  and  chafing  of  goods  in  transit, 
or  for  ordinary  loss  from  deterioration  or  shrinkage,  while  in 
his  charge,  or  from  the  inherent,  natural  infirmity,  or  tendency 
to  decay  or  damage,  of  the  articles  shipped,  as,  for  instance, 
fruits,  and  merchandise  of  a  similar  character ;  or  from  the  dim- 
inution of  liquids  by  evaporation,  which  ordinarily  cannot  be 
avoided,  or  is  incident  to  the  character  of  the  goods.  All  of 
these  natural  results,  from  causes  which  ordinarily  afBect  goods, 
are  deemed  to  have  been  considered  as  inevitable  by  the  parties 
to  the  contract  of  insurance,  and,  therefore,  not  included  in  it. 
So,  also,  there  is  implied,  on  the  part  of  the  shipper,  an  assur- 
ance that  his  goods  are  in  a  fit  condition  for  transportation ; 
that  they  are  properly  packed  and  put  up  for  shipment ;  and  if 
loss  results,  from  the  goods  not  having  been  in  proper  condition 

1  Riley  v.  Home,  5  Bing.  217;  Coggs  v.  Bernard,  2  Ld.  Eayra.  900-918;  Orange 
Co.  Bank  v.  BrowTi,  9  "Wend.  114, 115;  Story  on  Builm(!nt.s,  488-491.  By  tlie  term 
"act  of  God"  is  meant  inevitable  accident  or  casualty;  an  accident  -wliich 
arises  from  a  cause  wliich  operates  without  interference  or  aid  from  man.  Such 
are  the  definitions  by  Story,  in  liis  work  on  Bailments,  Sec.  489,  and  in  Bouvier's 
Law  Die.  p.  G9,  but  some  ■\\Titers  declare  that  there  is  a  distinction  between 
"act  of  God"  and  "  inevitable  accident ";  that  the  former  means  a  result  from 
purely  natural  causes,  such  as  storms,  winds,  etc.  (Trent  &  Mersey  Nav.  Co. 
V.  Wood,  4  Dougl.  2!!0;  McArthur  v.  Sears,  21  Wend.  198.) 

By  "the  king's  enemies"  is  meant  public  enemies,  with  whom  the  nation  is 
at  war.     (Story  on  Bailments,  489;  Abbott  on  Shipp.  p.  .'{,  Chap.  4,  Sec.  3.) 


349  CAREIERS.  §  201 

for  the  voyage,  or  from  defects  in  the  package  of  them,  the 
carrier  is  not  held  responsible  for  such  loss.^ 

§  291.   Common  carriers   not  insurers  of  live-stock. — 

In  the  transportation  of  live-stock  there  appears  to  have  oc- 
curred an  especial  relaxation  of  the  rule  that  a  carrier  becomes 
an  insurer,  until  from  the  later  American  decisions  it  appears 
that  the  common-law  rule  hardly  applies  in  such  cases,  and  it 
Avould  seem  that  the  liability  of  a  common  carrier  of  animals 
is  essentially  different  from  that  of  a  carrier  of  merchandise,  or 
other  inanimate  property.  While  common  carriers  are  insurers 
of  inanimate  property  against  all  loss  and  damage,  except  such 
as  is  inevitable,  or  caused  by  public  enemies,  they  are  not  in- 
surers of  animals  against  injuries  arising  from  their  nature  and 
j)ropensities,  and  which  could  not  be  prevented  by  foresight,  vig- 
ilance, and  care.  They  do  not  absolutely  warrant  live  freight 
against  the  consequences  of  its  own  vitality.  Animals  may  in- 
jure or  destroy  themselves,  or  one  another ;  they  may  die  from 
fright  or  starvation ;  they  may  refuse  to  eat  or  drink,  or  they 
may  die  from  heat  or  cold.  In  all  such  cases  the  carrier  Is  re- 
lieved from  responsibility  if  he  can  show  that  he  has  provided 
all  suitable  means  of  transportation,  and  exercised  that  degree  of 
care  which  the  nature  of  the  property  requires.^ 

1  Story  on  Bailments,  Sec.  492a;  Bouvier's  Law  Die.  Vol.  1,  p.  299.  "The 
carrier  is  not  responsible  for  losses  occurring  from  natural  causes,  such  as  frost, 
fermentation,  evaporation,  or  natural  decay  of  perishable  articles,  or  the  natural 
and  necessary  wear  in  the  course  of  transportatation,  provided  the  carrier  ex- 
ercises all  reasonable  care  to  have  the  loss  or  deterioration  as  little  as  possible." 
(Puller,  Kisi  Prius,  69.) 

"  A  consignor  cannot  recover  for  loss  of  iierishable  goods  shipped  in  bad  con- 
dition, even  though  the  carrier's  negligence  contributed  to  the  loss,  unless  by 
ordinary  care  the  former  could  not  have  avoided  the  consequences  of  the  lat- 
ter's  negligence."  (Reed  v.  Phil.  Etc.  R.  R.  Co.  3  Houst.  [Del.]  176.)  The  con- 
signment was  of  a  lot  of  i^eaches. 

"A  common  carrier  is  not  only  responsible  for  negligence,  but  is  an  insurer 
against  any  loss  not  occasioned  by  act  of  God,  the  public  enemies,  or  the  fault  of 
the  party  suffering  the  loss,  and  the  burden  of  proof  is  upon  the  carrier  to  show 
tliatthe  loss  resulted  from  one  of  the  excepted  cases."  (Bohamman  ?•.  Ham- 
mond et  al.  42  Cal.  227.) 

"A  common  carrier  of  chattels  does  not  insvire  them  against  their  own  fault, 
or  against  the  fault  of  their  owner;  nor  against  damage  cause'd  by  an  inherent 
defect  in  the  chattels  carried,  or  by  a  want  of  care  which  the  owner  was  bound 
to  exercise."    (Rixford  v.  Smith,  52  N.  H.  355.) 

2  Boyce  v.  Anderson,  2  Peters,  150,  in  which  it  was  held  that  the  carrier  of 
slaves  was  not  an  insurer  of  their  safety,  but  Avas  only  liable  for  ordinary  neg- 


§  291  CARRIERS.  350 

lect :  and  this?  ruling  was  pitt  on  the  ground  that  he  could  not  have  the  same  ab- 
solute control  over  them  that  he  has  over  inanimate  matter. 

Clark  et  al.  r.  R.  &  S.  R.  R.  Co.  14  N.  Y.  570.  "The  liability  of  common  car- 
riers of  animals  is  not,  in  all  respects,  the  same  as  that  of  a  carrier  of  inani- 
mate property.  But  the  liability  of  a  railroad  company,  engaged  as  a  common 
carrier  of  animals,  is  not  limited  to  the  careful  and  safe  conveyance  of  the  car 
containing  them.  In  the  absence  of  a  special  agreement,  the  company  is  re- 
sponsible for  any  injury  which  can  be  prevented  by  foresight,  vigilance,  and 
care,  althougli  arising  from  the  conduct  of  animals.  But  the  carrier  is  not  an 
insurer  against  injuries  resulting  from  tlie  nature  and  propensities  of  the  animals, 
and  whicli  diligent  care  cannot  prevent.  As  to  damages  arising  from  other 
causes  the  liability  is  the  same  as  that  of  a  carrier  of  other  iiroperty." 

M.  S.  &  ]Sr.  I.  R.  R.  Co.  V.  McDonough,  21  Mich.  165;  Angell  on  Carriers,  214a. 
"If  it  should  be  conceded  that,  in  the  absence  of  any  contract,  receipt,  or  regu- 
lation, the  full  liabilities  of  common  carriers  do  not  exist  with  respect  to  rail- 
roads when  engaged  in  the  transportation  of  live-stock,  there  is,  notwithstand- 
ing, no  principle  of  law  which,  in  the  absence  of  contract,  exonerates  them 
from  the  exercise  of  ordinary  care." 

German  v.  R.  R.  Co.  38  Iowa,  131.  "  In  an  action  against  a  railroad  company  to 
recover  for  injuries  done  by  one  of  jjlaintiff's  pair  of  horses  to  his  mate,  while 
being  carried  by  the  defendants,  the  defendants  requested  a  ruling  that  if 
they  used  due  diligence  and  care,  and  provided  a  suitable  car,  and  the  injuries 
were  caused  by  the  i^eculiar  character  and  j^ropensities  of  the  horses,  such  as 
fright  or  bad  temper,  they  were  not  liable;  the  judge  refused  this  ruling,  biit 
ruled  that  if  the  horse  was  injured  by  his  mate  in  an  outburst  of  viciousness, 
quite  unusual  in  horses  worked  together,  the  jury  might  find  for  the  defendants. 
Held,  that  the  defendants  had  good  ground  of  excei^tion."  (Evans  v.  Fitch- 
burg  R.  R.  Co.  Ill  Mass.  142;  Louisville  R.  R.  Co.  v.  Hedger,  9  Bush,  [Ky.]  645; 
Cent.  L.  J.  Jan.  28th,  1876.) 

Penn  v.  B.  &  E.  R.  R.  Co.  49  N.  Y.  207.  "  The  liability  of  a  common  carrier 
of  animals  is  essentially  different  from  that  of  a  carrier  of  merchandise  or  other 
inanimate  property.  "While  common  carriers  are  insurers  of  inanimate  jiroperty 
against  all  loss  and  damage,  except  such  as  is  inevitable  or  caused  by  public  en- 
emies, they  are  not  insurers  of  animals  against  injuries  arising  from  their  na- 
ture and  propensities,  and  which  could  not  be  prevented  by  foresight,  vigilance, 
and  care." 

Bissellw.  N.  Y.  C.  R.  R.  Co.  25  K  Y.  442;  Smith  v.  K  H.  &  K  R.  R.  Co.  12 
Allen,  531 ;  Cragin  et  al.  v.  N.  Y.  C.  R.  R.  Co.  51  N.  Y.  63.  This  was  an  action 
brought  to  recover  damages  for  the  loss  of  forty-three  hogs  out  of  a  lot  of  hogs 
transported  for  plaintiff  by  defendant  from  Buffalo  to  Albany,  June,  1858.  The 
hogs  died  from  the  effects  of  heat,  the  result  of  the  negligence  of  the  defend- 
ant's agents  in  not  watering,  wetting,  and  cooling  off  the  liogs  on  the  way  to 
their  destination.  Tliere  was  a  special  agreement  as  to  responsibility,  but  the 
general  rule,  as  given,  applies  to  all  similai  cases,  Aiz. :  "Defendant  contracted 
to  transport  a  lot  of  hogs  for  plaintiffs  from  Buffalo  to  Albany.  By  the  con- 
tract, in  consideration  of  a  reduced  rate  of  freight,  plaintiff  assumed  the  risk 
of  injuries  from  heat,  etc.  Forty-three  of  the  hogs  died  from  the  effects  of  heat, 
the  result  of  the  defendant's  employees  in  not  watering  and  cooling  Uw,  liogs  by 
wetting.  In  an  action  to  recover  damages,  held,  that  as  the  common-law  liabil- 
ity of  carriers  did  not  apply  to  live-stock,  but  in  the  transportation  thereof  they 
were  liable  only  for  negligence,  to  give  effect  to  the  stipulation  in  the  contract 
it  must  be  construed  as  exempting  defendants  from  injuries  by  heat,  the  result 
of  negligence,  and  that,  therefore,  defendants  were  not  liable."  (Carr  v.  L.  &  Y. 
B.  R.  Co.  14  Eng.  Law  &  Eq.  R.  340;  McManus  v.  L.  &  Y.  R.  R.  Co.  2  Hurl.  & 
Norm.  393.) 


351  CAREIEES.  §  292 

§  292,   The  right  of  carriers  to  limit  their  responsibility. 

— As  to  the  poAver  of  the  carrier  to  lunit  his  responsibility  by- 
notices  to  the  shipper,  or  by  special  agreement,  there  has  been 
much  controversy.  In  England,  the  general  tenor  and  effect 
of  the  decisions  has  been  that,  viewing  the  hardship  to  which 
the  carrier  is  exposed  by  being  forced  to  take  and  safely  trans- 
port all  goods  intrusted  to  his  care,  he  ought  to  be  permitted  to 
limit  his  liability  by  such  notices  of  the  character  of  his  em- 
ployment as  change  him  from  a  common  carrier  to  a  special  car- 
rier,i  although,  upon  the  inconveniences  arising  to  the  public 
from  such  exceptions  to  the  common  rule,  much  opposition  has 
occurred  to  this  innovation. 

But,  in  America,  the  converse  Is  the  present  result  of  the  de- 
cision, and  the  weight  of  authority  is  against  the  validity  of 
public  notices  given  by  the  carrier  seeking  to  restrict  his  liabil- 
ity, although  the  knowledge  of  the  existence  of  such  notice  has 
been  brought  home  to  the  shipper  of  the  goods.^  Although  it 
must  be  considered  that  many  able  jurists  in  the  Courts  of  the 

1j.  S.  &  M.  S.  R.  E.  Co.  V.  Perkins,  25  Mich.  329.  "  Railroad  companies  are  not, 
by  the  common  law,  common  carriers  of  live-stock,  and  can  only  make  them- 
selves common  carriers  of  that  species  of  property  by  assuming  to  convey  it  as 
common  carriers."    (M.  S.  &  N.  I.  R.  R.  Co.  v.  McDonough,  21  Mich.  1C5. ) 

1  Riley  v.  Home,  5  Bing.  217;  Southcote's  Case,  4  Co.  Rep.  84;  Morse  v.  Slue,  1 
Vent.  238;  Peck  v.  N.  S.  R.  R.  Co.  10  H.  L.  C.  493;  Austin i'.  Manchester,  Etc.  R. 
E.  Co.  11  Eng.  Law  &  Eq.  512;  Harris  v.  Packwood,  3  Taunt.  204;  Evans  v.  Soule, 
2  M.  &  Selw.  1;  Smith  v.  Home,  8  Taunt.  146;  Batson  v.  Donovan,  4  Barn.  &  Aid. 
39;  Riley  v.  Home,  5  Bing.  217;  Chipperdale  v.  L.  &  N.  R.  R.  Co.  7  Eng.  Law  & 
Eq.  395;  O.  S.  K  Co.  v.  Shand,  3  Moore  P.  C.  (N.  S.)  272. 

2  Although  a  common  carrier  may  limit  his  common-law  liability  by  special 
contract,  assented  to  by  the  consignor  of  the  goods,  an  iinsigned  general  notice, 
printed  on  the  back  of  a  receipt,  does  not  amount  to  such  a  contract,  though  the 
receipt,  with  such  notice  on  it,  may  have  been  taken  by  the  consignor  without 
dissent.  (R.  R.  Co.  v.  Mfg.  Co.  16  Wall.  319.)  The  case  was  an  action  for  dam- 
ages for  injury  to  a  lot  of  wool,  shipped  on  defendant's  train,  plaintiff  receiving 
a  receipt  therefor,  in  usual  form,  upon  the  back  of  which  was  printed  a  notice 
that  all  goods  and  merchandise  are  at  the  risk  of  the  owners  while  in  the  ware- 
houses of  the  company,  unless  the  loss  or  injury  to  them  should  happen  through 
tlie  negligence  of  the  agents  of  the  company.  The  Court,  in  concluding  as  above 
cited,  earnestly  expresses  itself  as  opposed  to  relaxation  of  the  common-law 
rule  by  a  notice  of  this  character,  as  not  only  against  the  policy  of  the  law,  but 
a  serious  injury  to  commerce,  inasmuch  as  the  carrier,  in  his  public  character,  is 
practically  able  to  impose  any  terms  he  chooses,  by  printing  notices  upon  his 
receipts,  and  a  shipper  cannot  be  deemed  to  assent  thereto,  but  rather  to  send 
his  goods  by  the  sole  conveyance  at  his  command,  and  he  is  not  boimd  to  notify 
the  carrier  that  he  relies  upon  the  law  and  dissents  from  the  stipulation  con- 
tained in  the  notice. 


§  293  CARKIEES.  352 

United  States  admit  the  force  of  reasoning  In  the  English  cases, 
and  Insist  that  common  carriers  may  qualify  their  common-law 
responsibility  by  notice  brought  home  to  the  knowledge  of  the 
owner  of  the  goods,  and  assented  to  by  him,i  and  more  espe- 
cially in  the  matter  of  transportation  of  passengers,  that  the 
company,  by  a  printed  notice,  require  the  traveler  to  disclose 
the  value  of  the  baggage  which  he  carries. 

§  293.  Limitation  of  carrier's  liability  by  special  con- 
tract.— The  law  luidertakes,  in  some  instances,  to  make  an 
agreement  for  individuals  by  establishing  presumptions  that  ne- 
gotiations have  been  entered  upon,  or  employment  given,  upon 
an  understanding  to  which  the  parties  have  not  seen  fit  to  give 
expression ;  but,  as  this  is  in  the  nature  of  a  protection,  such 
legal  presumption  does  not  prevent  the  showing  of  a  different 
state  of  facts,  and  it  Is  manifest  that  the  contract  which  the 
law  imposes  may  be  varied  by  the  parties  to  it ;  as  in  all  cases 

"  If  tlie  parties  were  on  an  equality  in  tlieir  dealings  with  eacli  other,  there 
might  be  some  show  of  reason  for  assuming  acquiescence  from  silence ;  but,  in  the 
nature  of  the  case,  this  equality  tloes  not  exist,  and,  therefore,  every  intend- 
ment should  be  made  in  favor  of  the  shiiiper. 

"It  can  readily  be  seen,  if  the  carrier  can  reduce  his  liability  in  the  way  pro- 
posed, he  can  transact  business  on  any  terms  he  chooses  to  prescribe.  The  ship- 
per is  not,  as  a  general  thing,  in  a  condition  to  contend  with  him  as  to  terms, 
nor  to  await  the  result  of  an  action  at  law,  in  case  of  refusal  to  carry  uncondi- 
tionally. Indeed,  such  an  action  is  seldom  resorted  to,  on  account  of  tlie  inabil- 
ity of  the  shipper  to  delay  by  sending  his  goods  forward.  The  law,  in  conceding 
to  carriers  the  ability  to  obtain  any  reasonable  qualification  of  their  responsi- 
bility, has  gone  as  far  in  this  direction  as  public  policy  will  allow.  The  weight 
of  authority  is  against  the  validity  of  the  kind  of  notices  we  liave  been  consid- 
ering." (2  Parsons  on  Cont.  238,  Note  n,  5th  Ed. ;  Iledlield  on  Railways,  p.  369; 
McMillan  v.  M.  S.  &  St.  I.  R.  Tw  Co.  10  Mich.  109;  Case  of  The  Pacific,  Deady,  17; 
Southern  Ex.  Co.  v.  Crook,  44  Ala.  4G8;  Blossom  v.  Dodd,  43  N.  Y.  264;  Baltimore, 
Etc.  Pv.  E.  Co.  V.  Brady,  32  Md.  333;  Menzell  v.  R.  R.  Co.  1  Dill.  531;  Hollister  u. 
Nowlen,  19  Wend.  234;  Cole  v.  Goodwin,  Ibid,  251;  Camden  Co.  v.  Belknap,  21 
Wend.  354;  Clark  v.  Faxton,  Ibid,  153;  Alexander  r.  Greene,  3  Hill,  9;  Powell  v. 
Meyers,  20  Wend.  594;  C.  &  A.  R.  R.  Co.  v.  Burke,  13  Wend.  611.) 

1  Atwood  V.  R.  T.  Co.  9  Watts,  Penn.  87,  in  which  it  was  held  that  a  common 
carrier  could  qualify  his  acceptance  of  goods  for  transportation  in  such  manner 
as  to  diminish  his  common-law  liability  as  an  insurer,  and  that  such  a  qualifica- 
tion was  made  by  a  printed  notice  on  the  receipt,  the  notice  having  been  brought 
to  the  notice  of  the  shipper. 

Bingham  v.  Rogers,  0  Watts.  &  S.  495;  Thomas  v.  P..  &  P.  R.  R.  Co.  10  Mete. 
472.  And  there  are  several  decisions  to  the  effect  that  common  carriers  may,  by 
notice  brought  home  to  the  shipper,  or  the  passenger  upon  lines  of  travel,  re- 
quire him  to  state  the  nature  and  value  of  the  property,  or  may  for  tliat  pur- 
pose make  a  special  acceptance. 


353  CARRIERS.  §  294 

where  the  law  presumes  a  contract,  by  the  assumption  of  special 
relations  between  the  parties,  it  may  be  shown  that  another 
and  different  contract  was,  in  fact,  entered  upon,  and  the  legal 
presumption  yields  to  proof  of  another  agreement  entered 
into  by  the  parties  with  relation  to  the  subject-matter,  and 
therefore  the  common  carrier  may  limit  his  responsibility  as 
an  insurer  by  a  special  agreement  to  which  the  shipper  is  a 
party.i 

§  294.  The  carrier  has  a  lien  upon  the  goods  intrusted  to 
his  care  for  shipment,  and  also  for  his  advances  for  freight  paid 
by  him  to  other  carriers  who  have  transported  the  goods  part 
way  on  their  route,  and  for  storage  which  was  necessary  for  their 
safety,  and  he  cannot  be  compelled  to  deliver  them  until  his 
reasonable  charges  and  advances  have  been  paid.^ 

This  lien,  however,  is  not  for  any  service  other  than  for  trans- 
portation of  the  identical  property,  and  does  not  extend  to  any 
unpaid  balance  due  on  former  shipments ;  and  his  lien  depends 
upon  his  continued  possession  of  the  goods,  for  if  he  allow  them 

1  R.  R.  Co.  V.  ]VIfg.  Co.  16  Wall.  319;  Ante,  Note  2;  Knell  v.  U.  S.  &  B.  S.  S.  Co. 
33  N.  Y.  423;  Blossom  v.  Docld,  43  N.  Y.  264. 

Although  the  liability  of  a  common  carrier  may  be  reasonably  limited  by  spe- 
cial contract,  public  policy  will  not  permit  common  carriers,  even  by  special  con- 
tract, to  be  exempted  from  damages  for  losses  occasioned  by  the  negligence  or 
misfeasance  of  themselves  or  others.  School,  Etc.  ?».  Boston,  Etc.  R.  R.  Co.  102 
Mass.  552 ;  Ciiristenson  v.  A.  E.  Co.  15  Minn.  270 ;  Case  of  Pacific,  1  Deady,  17 ; 
Lamb  v.  C.  Etc.  R.  R.  Co.  46  N.  Y.  271;  Caldwell  v.  N.  J.  S.  S.  Co.  47  K  Y.  282; 
Bankard  v.  B.  Etc.  R.  R.  Co.  34  Md.  197;  Case  of  the  City  of  Norwich,  1  Ben. 
271,  in  which  a  receipt  was  given  by  a  common  carrier  for  property  intrusted  to 
him,  stating  that  no  trackage,  if  lost,  damaged,  or  stolen,  should  be  deemed  of 
greater  value  than  one  hundred  dollars,  unless  specifically  receipted  for.  Held, 
that  the  limitation  was  ineffective  against  a  loss  arising  from  negligence,  as 
being  against  public  policy.  To  same  effect,  see  Soiithern  Ex.  Co.  v.  Crook,  44 
Ala.  468,  and  R.  R.  Co.  *'.  Lockwood,  17  Wall.  357,  in  which,  before  being  per- 
mitted to  ship  his  cattle  in  a  railroad  train,  a  drover  was  required  to  sign  an 
agreement  exempting  the  railroad  company  from  all  liability  by  loss  of  or  dam- 
age to  the  animals,  even  when  caused  by  the  negligence  of  the  company's  em- 
ployees. Held,  that  such  an  exemption  is  not  just  or  reasonable  in  tlie  eye  of 
the  law,  and  should  not  be  upheld. 

1  White  V.  Vann,  6  Humph.  70;  Skinner  r.  Upshaw,  2  Ld.  Raym.  752;  Soder- 
gren  r.  Flight,  6  East,  622;  Abb.  Shipp.  268;  Hutton  v.  Bragg,  2  Marsh,  345; 
Stevenson  v.  Blakelock,  1  Maule  &  Selw.  543;  Chase  v.  Westmore,  5  Maule  & 
Selw.  186;  Hunt  v.  Haskell,  24  Me.  329;  Wilson  v.  Grand  Trunk  R.  R.  Co.  56 
Me.  60. 

Farm— 23. 


§  295  CARRIERS.  354 

to  go  from  his  possession,  the  lien  is  lost  and  cannot  be  revived, 
even  by  his  recovering  possession  of  the  property.^ 

He  cannot,  however,  sell  the  goods  without  legal  proceedings 
to  establish  the  validity  of  his  claim  against  the  shipper,  and 
such  proceedings  must  be  for  the  express  purpose  of  enforcing 
the  lien  in  a  Court  of  competent  jurisdiction.  An  action  at  law 
upon  the  contract  is  not  alone  insufficient  for  that  purpose,  but 
is  liable  to  cause  the  lien  to  be  lost.^ 

The  carrier's  lien  does  not  extend  to  goods  wrongfully  deliv- 
ered to  him  by  a  person  not  the  owner,  although  the  carrier 
receive  and  transport  them  inngcently.^ 

§  295.   A  common   carrier  is  bound  to  treat  all  alike 

who  employ  his  services.  His  duty  to  the  public  is  such  that 
he  cannot  lawfully  make  or  give  any  undue  preference  or  ad- 
vantage to,  or  in  favor  of,  any  person,  or  subject  any  j)erson  to 
prejudice  or  disadvantage  in  respect  to  terms,  facilities,  or  ac- 
commodations ;  and  the  carrier  will  be  liable  for  any  damage 
arising  from  a  violation  of  this  duty.  The  only  excuse  which 
he  can  make  for  not  receiving  and  forwarding  freight  or  pas- 
sengers is  that  his  means  of  conveyance  is  exhausted  by  freight 
or  passengers  already  received,  provided  it  appears  that  the 
property  offered  to  him  for  carriage  is  brought  to  him  at  the 
proper  place,  and  in  due  time  to  conform  to  his  established 
rules,  or  the  proposed  passenger  is  at  the  appointed  place  at  the 
time  fixed  for  departure.  And  this  duty  he  owes  to  the  public 
at  large,   without    distinction    of    persons,   so    that    he    cannot 

1  Story  on  Bailments,  Sec.  588;  Sullivan  r.  Park,  33  Maine,  438;  Adams  v. 
Clark,  9  Cusli.  215;  Kinlock  v.  Craig,  3  Term  E.  119;  Sweet  v.  Pyne,  1  East,  4; 
Yates  V.  Ralston,  8  Taunt.  293;  Bowman  v.  Hilton,  11  Ohio,  303;  "Wingard  v.  Ban- 
ning, 39  Cal.  453;  Story  on  Agency,  Sec.  367. 

2  Jones  V.  Latrobe,  5  Bing.  130;  Story  on  Agency,  Sec.  367.  "If  a  person  hav- 
ing a  lien  on  goods  should  cause  them  to  be  taken  in  execution  at  his  own  suit, 
he  would  lose  his  lien  thereby,  although  he  should  become  the  purchaser  of 
them  at  the  execution  sale,  and  they  were  never  removed  from  his  premises." 
So,  in  Wingard  v.  Banning,  39  Cal.  463,  it  was  held  that  where  one  sued  out  a 
writ  of  attachment,  and  procured  it  to  be  levied  on  property  on  which  he  had  a 
carrier's  lien,  he  lost  his  lien. 

3  Story  on  Agency,  Sec.  588.  A  carrier  of  goods,  at  the  request  and  for  tlie 
convenience  of  his  bailee  merely,  has  no  lien  upon  the  chattel  for  his  serv- 
ices as  against  the  owner.  (Gibson  v.  Gwinn,  107  Mass.  126;  Van  Buskirk  v. 
Purintor,  2  Hall,  561;  Richards  v.  King,  6  Wliart.  418;  Fitch  v.  Newberry,  1 
Doug.  1.) 


355  CARRIERS.  §  295 

charge  one  more  than  another,  or  any  one  more  than  his  estab- 
lished rates.^ 

1  A  common  carrier  has  no  right  to  discriminate,  in  forwarding  freight,  be- 
tween two  classes  of  shippers,  by  deliberately  delaying  or  stopping  the  property 
of  one  class  in  order  to  give  preference  to  that  of  another,  contrary  to  the  usual 
course  of  business.  (Keeny  «\  G.  T.  R.  E.  Co.  59  Barb.  104;  McDuffy  v.  R.  R. 
Co.  52  K  H.  730. ) 

Story  on  Bailments,  Sec.  508.  "One  of  the  duties  of  a  common  carrier  is  to 
receive  and  carry  all  goods  offered  for  transjiortation,  by  any  person  whatso- 
ever, upon  receiving  a  suitable  hire.  This  is  the  result  of  his  public  employ- 
ment as  a  carrier;  and,  according  to  the  custom  of  the  realm,  if  he  will  not 
carry  goods  for  a  reasonable  compensation,  upon  a  tender  of  it,  and  a  refusal 
of  the  goods,  he  ■n'lll  be  liable  to  an  action,  unless  there  is  reasonable  ground 
for  the  refusal;  and  he  has  no  right  to  charge  one  higher  rates  than  he  serves 
others  for." 

Bac.  Abridg.  Carriers,  B;  Boulston  r.  Sandford,  Skin.  R.  279;  Jackson  v. 
Rogers,  2  Shower,  327 ;  Rex  ?'.  Kilderby,  1  Saund.  312 ;  Riley  v.  Home,  5  Bing. 
217;  Crouch  v.  London  &  North  Western  R.  R.  Co.  25  Eng.  Law  &  Eq.  287.  But 
carriers  may  discriminate,  in  some  instances,  between  different  classes  of 
freight,  as  where,  from  special  causes,  they  are  piit  to  greater  risk  or  expense  iii 
handling  the  goods,  as  in  goods  which  are  in  small  parcels,  by  different  ship- 
pers, necessitating  more  clerical  labor  and  additional  trouble."  (Parker?;.  G. 
W.  R.  R.  Co.  6  Ellis  &  Blackburn,  77;  Story  on  Bailments,  508  note  1.) 


§  296  LANDLORD  AND  TENANT.  356 


CHAPTER  XXVI. 

LANDLORD  AND  TENANT. 

§  296.  Covenant  for  quiet  enjoyment. 

§  297.  Covenant  against  incumbrances. 

§  298.  Obligation  to  pay  taxes. 

§  299.  Common-law  rule  as  to  repairs. 

§  300.  Distinction  in  farming  leases  as  to  repairs. 

§  301.  Tenant's  right  to  make  alterations. 

§  302.  Distress  for  rent. 

§  303.  Landlord's  title  may  not  be  disputed  by  tenant. 

§  304.  Lease  may  be  attacked  by  tenant  for  fraud. 

§  o05.  As  to  waste,  in  farming  leases. 

^  306.  Eight  of  tenant  to  cut  trees  for  fuel. 

«  307.  Tenant's  duty  to  preserve  property. 

§  308.  Tenant's  right  to  remove  fixtures. 

§  309.  Distinction,  as  to  removal  of  fixtures,  against  agricultiu-al  tenants. 

§  296.  Covenant  for  quiet  enjoyment. — The  principal 
covenant  on  the  part  of  the  landlord  is  that,  for  the  time  in- 
cluded within  the  term  for  which  the  premises  are  leased,  the 
tenant  shall  have  the  quiet  enjoyment  and  possession  of  the 
premises.  The  law  imposes  this  covenant  from  the  nature  of 
the  relation  of  the  parties  to  each  other,  and  the  subject-matter 
of  the  transaction ;  it  is  to  be  assumed,  against  a  lessor,  that  he 
owns  the  land  leased ;  that,  therefore,  he  has  the  right  and 
power,  by  lease,  to  assign  the  possession  for  the  term,  and  an 
engagement  to  this  effect  on  his  part  is  always  implied. 

Eesulting  from  this  covenant,  the  right  to  demand  rent  depends 
on  the  undisturbed  possession  of  the  tenant,  the  engagement  on 
his  part  to  pay  it  being  in  consideration  of  his  having  the  use 
of  the  premises  :  if  that  fails,  the  consideration  for  the  contract 
is  gone,  and  it  cannot  be  enforced.^ 

1  Wilson  v.  Eaybould,  56  111.  417;  Mack  v.  Patcliin,  42  N.  Y.  167;  Home  Etc. 
Ins.  Co.  V.  Sherman,  46  N.  Y.  370;  Taylor's  Landlord  and  Tenant,  Sec.  304.  A 
mere  disturbance  of  the  tenant's  possession  by  a  trespasser  does  not,  however, 
discharge  him  from  ^layment  of  rent;  that  is  not  breaking  tlie  covenant  by  the 
landlord,  because  the  injury  is  one  which  lie  is  not  responsible  for.     He  simply 


357  LANDLORD    AND    TENANT.  §§  297-8 

§  297.  Covenant  that  the  land  is  free  from  incumbran- 
ces.— Another  covenant  on  the  part  of  the  landlord,  which  the 
law  implies,  is  that  the  demised  premises  are  free  from  incum- 
brances ;  otherwise  the  tenant  might,  notwithstanding  the  lessor 
owns  the  land  and  has  a  technical  right  to  lease,  be  deprived  of 
his  term  by  the  act  of  the  lessor.  It  appears  that,  even  without 
being  actually  ousted  by  the  holder  of  the  incumbrance,  the 
tenant  may  maintain  an  action  for  breach  of  this  covenant,  the 
mere  liability  or  chance  that  he  may  be  distui^bed  being  a  tech- 
nical breach  of  the  covenant ;  but  no  more  than  nominal 
damages  could  be  recovered.^ 

§  298.  Obligation  to  pay  taxes. — Another  agreement  inci- 
dent to  the  reasoning  which  imposes  upon  the  landlord  a  cove- 
nant that  the  premises  are  unincumbered,  is  the  obligation  to 
pay  the  taxes  and  lawful  assessments  upon  the  premises  during 

covenants  that  the  land  is  his  and  that  he  has  a  right  to  lease  it.  Hence,  an 
eviction  by  a  snperior  title  is  a  breach  of  the  covenant  that  he  is  the  owner,  but 
the  act  of  a  stranger  to  the  title  is  not  sufficient  to  discharge  the  tenant,  even  if 
his  possession  is  disturbed.  (Taylor's  Ld.  and  Ten.  Sees.  305,  306;  Gartside  v. 
Oakley,  58  111.  210;  Gardner  v.  Ketellas,  3  Hill,  330.) 

From  the  covenant  for  quiet  enjoyment  has  resulted  a  strict  rule  against  tlie 
landlord.  A  stranger,  who  is  a  trespasser,  may  oust  the  tenant,  and  he  still  be 
held  to  pay  the  rent,  but  if  the  landlord  distiorb  the  possession  in  the  least  he 
does  so  at  his  peril,  and  if  he  willfully  enter  vipon,  and  expel  the  tenant,  actually 
or  constructively,  from  a  part  of  the  demised  premises,  the  rule  has  been  held 
to  be  that  the  whole  rent  is  suspended  during  the  term,  though  the  tenant  con- 
tinue in  possession  of  the  residue.  (Johnson  v.  Oppenheimer,  12  Abb.  [N.  Y.] 
Pr.  N.  S.  454;  43  How.  Pr.  433.) 

Taylor's  Ld.  and  Ten.  Sec.  378;  Tunis  v.  Grandy,  22  Gratt.  (Va. )  109.  "When  a 
lessee  is  evicted  of  a  part  of  the  demised  premises,  by  one  claiming  under  a  title 
superior  to  that  of  the  lessor,  he  is  discharged  from  the  payment  of  so  much  of 
the  rent  only  as  is  properly  chargeable  to  the  part  of  the  laremises  from  whicli 
he  was  evicted.  But  when  a  tenant  is  evicted,  though  from  a  part  of  the  de- 
mised premises  only,  by  the  wrongful  act  of  the  landlord,  he  is  discharged  from 
the  payment  of  the  whole  rent." 

"Where  a  tenant  is,  by  his  lessor,  wrongfully  evicted  from  a  portion  of  the  de- 
mised premises,  he  is  thereby  excused  from  payment  of  any  of  the  rent,  although 
he  remains  in  possession  of  the  remaining  portion  of  the  premises  to  the  end  of 
the  term."    (Hagneru.  Smith,  63111.  4.32.) 

But  to  constitute  an  eviction,  there  must  be  more  than  a  mere  trespass  by  the 
landlord.  There  must  be  something  of  a  grave  and  permanent  character  done 
by  the  landlord,  with  the  intention  of  depriving  the  tenant  of  the  enjoyment  of 
the  premises :  the  question  of  eviction  or  no  eviction  depending  upon  the  cir- 
cumstances, and  being  a  matter  for  the  jury  to  decide.     (Ibid. ) 

1  Taylor's  Landlord  and  Tenant,  Sees.  318-22;  Jenkms  v.  Hopkins,  8  Pick.  346; 
Chapel  V.  Bull,  17  Mass.  220;  People  v.  Nelson,  13  Johns.  340;  Jackson  v.  Stern- 
berg, 20  Johns.  49;  Barrett  v.  Porter,  14  Mass.  143. 


§  299  LANDLORD  AND  TENANT.  358 

the  term ;  these  the  landlord  must  keep  paid,  in  order  that,  the 
(;laim  of  the  law  being  paramount,  the  tenant  cannot  be  other- 
wise protected  in  his  possession ;  and  if  the  tenant  pay  the 
taxes,  he  may  deduct  the  amount  paid  from  rent  due,  the  rule 
in  such  matters  being  that  when  a  tenant  has  been  compelled  to 
pay  out  money  to  protect  his  possession,  he  is  considered  as 
having  been  authorized  by  the  landlord  so  to  apply  his  rent, 
whether  it  was  due  or  to  become  due.^ 

§  299.  Common-law  rule  as  to  repairs. — As  to  repairs, 
the  common-law  rule  is  that  the  expenses  of  them  must  be 
borne  by  the  tenant,  and  no  covenant  is  implied  which  will 
compel  the  landlord  to  become  liable  for  them  ;  even  if  the 
buildings  burn  down,  the  rent  for  them  may  be  collected  by  the 
landlord,  from  the  tenant,  and  if  they  were  insured  in  favor  of 
the  landlord,  the  tenant  cannot  compel  him  to  appropriate  the 
insurance  money  to  rebuilding.^ 

In  New  York,  the  statute  has  changed  the  common  law,  and 
made  the  rule  that  the  landlord  must  keep  the  premises  in  re- 
pair.^ And  in  Louisiana,  the  converse  of  the  common-law  rule 
is  held  to  be  the  law.* 

'  It  is  not  unusual  to  insert  in  the  lease  a  covenant  on  the  part  of  the  tenant  to 
pay  the  taxes.  Of  course,  it  will  be  understood  that  the  covenants  mentioned 
as  implied  by  law  may  be  waived  or  changed  by  the  parties;  the  law  only 
makes  for  the  i>arties  the  contract,  where  they  have  not  done  it  for  themselves. 

"  The  obligation  of  the  landlord  to  i^ay  all  public  charges  against  the  property, 
except  such  as  the  tenant  has  undertaken  to  pay,  renders  him  liable  also  to  re- 
imburse the  tenant  for  all  such  payments  as  he  has  been  obliged  to  make,  in 
order  to  protect  his  goods,  or  the  jiroperty  leased,  from  other  demands  of  the 
public  collector."  (Taylor's  Ld.  and  Ten.  Sec.  342;  Ibid,  Sec.  Ml;  Taylor  v.  Za- 
mira,  6  Taunt.  524;  Eoe  v.  Hayley,  12  East,  469;  Carter  v.  Carter,  5  Bing.  409.) 

But  a  tenant  for  life  is  bound  for  taxes.  (Prettyman  v.  Walston,  ;34  HI.  191; 
Taylor's  Land,  and  Ten.  Sec.  318.) 

-Mumford  r.  Brown,  6  Cow.  478.  "  The  tenant  takes  the  premises  for  better 
and  for  worse ;  he  cannot  involve  his  landlord  in  the  expense  of  repairs  without 
his  consent — Brewster  v.  De  Fremery,  33Cal.  345,  in  which  the  Court  held  "that 
a  landlord  is  in  no  case  bound  to  rejiair,  unless  by  force  of  an  express  covenant 
or  contract."  (Casad  v.  Hughes,  27  Ind.  141;  Howards.  Doolittle,  3  Duer,  464; 
Sherwood  1).  Seaman,  2  Bosw.  127;  Kellenberger  t;.  Foresman,  13Ind.  475;  Doupe 
/■.  Genin,  45  N.  Y.  119;  Taylor's  Land  and  Ten.  Sec.  327-8;  Wiltz  v.  Mathews,  52 
N.  Y.  312;  Kline  v.  Jacobs,  68  Penn.  St.  57.) 

3  Laws  of  1860,  N.  Y.  592,  under  which  a  tenant  xnay  surrender  when  the  prem- 
ises become  untenable,  and  free  himself  from  payment  of  rent  thereafter,  so 
that  in  effect,  if  the  landlord  desires  to  keep  his  tenant,  he  must  repair. 

*  Perrett  v.  Dupre,  3  Rob.  La.  52 ;  Coleman  v.  Haight,  14  La.  An.  564.  But  it  is 
apparent  that  Louisiana  is  the  exception,  and  such  from  the  fact  that  the  civil 


359  LANDLORD    AND    TENANT.  §  300 

But,  as  in  other  cases,  the  parties  may  make  such  contracts 
as  they  please,  and  change  the  rule  as  to  themselves ;  where  the 
landlord  assumes  the  cost  of  keeping  the  buildings  in  repair 
the  tenant  is  justified  in  deducting  from  the  rent  due  so  much 
as  he  has  been  compelled  to  pay  out  for  repairs  such  as  the 
landlord  has  agreed  to  make  ;  this  he  may  do,  however,  only 
upon  due  notice  to  the  landlord  of  the  necessity,  accompanied 
with  a  demand  that  he  comply  with  his  engagement,  for  the 
covenant  is  not  that  he  will  permit  the  tenant  to  make  the  re- 
pairs and  reserve  the  cost  from  the  rent,  but  that  he,  the  land- 
lord, will  do,  or  cause  to  be  done,  the  work ;  hence,  default  must 
be  shown  before  the  tenant  can  be  sustained  in  making  and 
charging  to  his  landlord  the  requisite  disbursement.^ 

§  300.  Distinction  in  farming  leases  as   to   repairs. — 

Farming  leases  differ  from  others  in  the  matter  of  repairs. 
Generally,  under  the  common-law  ride,  and  where  local  statutes 
have  not  otherwise  provided,  the  tenant  must  keep  in  repair  the 
demised  premises,  but  an  exception  to  this  rule  is  made  in  favor 
of  the  tenant  of  farming  lands.  Like  tenants  of  other  prem- 
ises, he  is  bound  to  keep  in  repair  the  dwelling-house,  but  there 
his  obligation  ceases ;  he  is  not  bound  to  repair  the  barns, 
stables,  or  other  buildings,  nor  the  fences,  further  than  m  so  far 
as  the  law  imposes  that  duty  upon  him  under  the  implied  cov- 
enant on  his  part  to  treat  the  farm  in  a  husbandlike  manner ; 
as  to  what  that  is  to  be  deemed,  depends  upon  the  usages  of  the 
vicinity,  and  the  implied  covenant  to  repair  by  the  tenant  is 
generally  considered  to  extend  no  further  than  those  which  may 
be  required  upon  the  dwelling-house.^ 

law  appears  always  to  have  recognized  the  proposition  that  he  who  leases 
I)roperty  guarantees  its  present  and  continued  fitness  for  the  purposes  to  which 
by  the  lease  it  is  devoted.  (Code  Nap.  1722;  Code  of  Louisiana,  Art.  2667;  Scud- 
der  V.  Paulding,  4  Rob.  La.  428.) 

iKipv.  Merwin,52N.  Y.  542;  Farrot  v.  Mettler,  21  La  An.  220;  Gerzebeck  v. 
Lord,  33  N.  J.  L.  240;  Norfleet  v.  Cromwell,  64  N.  C.  1. 

2  Taylor's  Landlord  and  Tenant,  Sec.  344. 

"As  to  farming  leases,  a  tenant  is  also  under  a  similar  obligation  to  repair, 
but  it  differs  from  his  liability  to  repair  houses  in  this  respect,  that  it  extends 
only  to  the  dwelling-house  occupied  by  the  tenant;  the  burden  of  repairing  the 
out-buildings  and  other  erections  on  the  farm  being  sustained  either  by  the 
landlord  or°the  tenant,  (in  the  absence  of  any  express  provision  in  the  lease)  ac- 
cording to  the  particular  custom  of  the  country  in  which  the  farm  is  situated." 


§  301  LANDLORD    AND    TENANT.  360 

§  301.   The  tenant's  right  to   make   alterations.  —  The 

right  which  the  tenant  has  is  to  make  use  of  the  property. 
The  power  of  making  alterations  does  not  arise  out  of  a  mere 
right  of  user.  It  is,  therefore,  incompatible  with  his  interest 
for  a  tenant  to  make  any  alteration,  unless  he  is  justified  by  the 
express  permission  of  his  landlord.^ 

By  a  lease,  the  use — not  the  dominion — of  the  property  de- 
mised, is  conferred.  If  a  tenant  exercises  an  act  of  ownershij) 
he  is  no  longer  protected  by  his  tenancy. 

It  is,  in  general,  not  necessary  for  the  landlord  to  wait  until 
the  end  of  the  term  before  proceeding  against  the  tenant  for 
making  unwarranted  alterations ;  and  there  appears  to  have 
been  no  case  in  which  the  landlord  was  required  to  wait  until 
the  end  of  the  lease  to  see  whether  the  tenant  has  gone  beyond 
the  powers  conceded  by  the  lease,  or  whether  the  premises 
might  be  restored  by  the  tenant  to  their  original  condition.  If 
the  waste  committed  went  beyond  the  license,  an  immediate 
wrong  was  done,  which  was  at  once  the  subject  of  redress  in  a 
(\)urt,  either  of  law  or  of  equity. 

The  Courts  have  exercised  the  power  over  tenants  m  a  man- 
ner quite  watchful  of  the  interests  of  the  landlord,  and  have 
never  left  the  matter  for  adjustment  when,  as  at  the  end  of  the 
term,  the  landlord  could  have  no  redress  except  a  personal 
judgment  against  the  out-going  tenant ;  and  whenever  the  ten- 
ant has  gone  beyond  the  powers  conceded  by  the  lease,  he  has 
been  restrained  by  injunction,  or  compelled  at  once  to  make  sat- 
isfaction, or  to  restore  the  premises  to  the  condition  in  which 
he  found  them.^ 

But  it  is  not  such  an  alteration  as  v/ould  warrant  an  action 
at  law,  or  in  equity,  for  a  tenant  to  put  new  structures  or  other 
improvements  on  the  property,  as  the  requirements  of  his  busi- 
ness demand,  so  long  as,  in  so  doing,  he  does  nothing  to  injure 

1  Taylor's  L.  and  T.  348;  Farrant  v.  Thompson,  5  B.  &  Aid.  826;  Doe  v.  Jones,  4 
B.  &  Aid.  126;  Jackson  v.  Tibbetts,  3  Wend.  341;  Baxter  v.  Taylor,  1  Nev.  & 
Man.  11.  "A  lessee,  in  the  absence  of  an  agreement  to  that  effect,  or  of  an 
express  permission  from  his  lessor,  is  not  justified  in  making  alterations  in  the 
demised  premises."     (Agate  v.  Lowenbein,  57  N.  Y.  604.) 

2  Packington  v.  Packington,  3  Atkyns,  215;  Rolt  v.  Lord  Somerville,  2  Ab.  Eq. 
759;  Astor  v.  Astor,  1  Vesey,  Sr.  264;  Strathmore  v.  Bowes,  2  Bro.  Chap.  88; 
Marker  v.  Marker,  4  Eng.  Law  and  Eq.  95:  1  Washburn,  E.  P.  120;  Agate  v.  Low- 
enbien,  57  N.  Y.  612-4. 


361  LANDLORD  AND  TENANT.  §  302 

or  impair  the  value  of  the  freehold.  An  agricultural  tenant 
might,  therefore,  make  such  alterations  as  consisted  in  fencing, 
erecting  new  buildings,  and  similar  improvements ;  but  he 
would  have  no  right,  in  so  doing,  to  pull  down  valuable  build- 
ings, permanent  fences,  or  other  improvements  already  existing 
on  the  demised  premises.  He  has  no  right  to  so  meddle  with 
existing  condition  of  things,  or  to  make  improvements  or  alter- 
ations which  will  materially  and  permanently  change  the  nature 
of  the  property,  so  as  to  make  it  impossible  for  him  to  restore 
the  premises,  at  the  expiration  of  the  term,  substantially  as  he 
received  them.^ 

§  302.  Distress  for  rent  has  been  so  far  superseded  by  stat- 
utory regulations  as  to  have  lost  many  of  its  distinguishing  feat- 
ures as  a  common-law  remedy  in  favor  of  the  landlord  to 
obtain  his  rent ;  but  the  chief  characteristics  of  the  proceeding 
still  affect  many  of  the  States. 

By  this  procedure,  the  landlord  seized  the  tenant's  goods 
and  chattels,  held  them  in  pledge  for  a  specified  time,  and 
then,  the  rent  remaining  unpaid,  sold  them,  and  applied  the 
proceeds  to  the  payment  of  the  debt. 

The  proceeding  is  not  governed  by  the  practice  affecting 
ordinary  trials  at  law ;  it  originates  from  the  action  of  the 
landlord.  The  levy  is  made  under  his  authority,  and  not  un- 
der a  process  of  the  Court.  After  the  seizure  is  made,  how- 
ever, the  matter  is  transferred  to  the  appropriate  Court,  for  the 
purpose  only  of  ascertaining  whether  the  relation  of  landlord 
and  tenant  exists,  and  what  sum  was  due  for  rent  when  the 
goods  were  seized.^ 

1  Taylors  Landlord  and  Ten.  348;  Sheifelin  v.  Carpenter,  15  Wend.  400;  Win- 
ship  V.  Pitts,  3  Paige,  259.  See  Pennybacker  r.  McDougall,  48  Cal.  160-4;  Jesser 
V.  Gifford,  4  Burrow,  2141.  Good  faith,  on  the  part,  of  the  tenant,  is  no  defense 
where  the  act,  on  general  principles  of  law,  amounts  to  waste.  (Clarke  r. 
Holden,  7  Gray,  8.) 

•'  Allwood  V.  ]SIansfleld,  33  HI.  452;  3  Kent's  Com.  476;  Taylor's  Land,  and  Ten. 
556.  This  remedy  appears  to  be  in  full  force  in  the  New  England  States  through 
the  law  of  attachment  on  mesne  process.  In  South  Carolina,  double  rent  may 
be  collected ;  and  Chancellor  Kent  declares  that  the  English  common  and  stat- 
utory law,  in  relation  to  distress  for  rent  and  the  relief  of  landlords,  has  been 
generally  adopted  by  the  United  States.  (3  Kent's  Com.  472. )  But  careful  examin- 
ation of  the  laws  discloses  that  the  adoption  of  the  common  law  has  been  fol- 
lowed by  statutory  enactment,  in  the  several  States,  so  far  modifying  the  same 


§§  303-4  LANDLORD    AND    TENANT.  362 

§  303.  The  landlord's  title  cannot  be  disputed  by  the 
tenant. — The  relation  of  the  parties,  one  to  the  other,  and  each 
to  the  property  leased,  is  such  that  public  policy  demands  the 
rigid  enforcement  of  this  rule ;  so  that,  in  whatever  form  of 
action,  the  matter  of  title  is  of  importance.  He  who  occupies  the 
relation  of  tenant,  having  once  recognized  another  person  as 
his  landlord  by  accepting  a  lease  from  him,  or  the  like,  is  pre- 
cluded from  showing  that  he  from  whom  he  has  leased  had  no 
title  at  the  time  the  lease  Avas  granted.  And  this  rule  extends 
to  a  tenant  holding  over,  as  well  as  to  an  under  tenant,  assignee, 
or  other  person  claiming  under  the  lessee,  and  is  applicable  to 
every  species  of  tenancy,  whether  for  years,  at  will,  or  by  suf- 
france.^ 

§  304.  A  fraudulent  lease  may  be  assailed  by  the  ten- 
ant.— The  tenant  may,  by  direct  attack,  assail  a  lease  obtained 
from  him  through  fraud,  or  by  unfair  practices,  to  induce  him  to 
take  a  lease  of  premises  which  were  in  his  possession.^ 

that  in  New  York,  North  Carolina,  California,  Tennessee,  Ohio,  and  Alabama 
the  remedy  has  ceased  to  exist ;  and  the  general  tendency  of  rulings  by  the 
Courts  is  to  deem  the  remedy  objectionable,  and  fit  to  be  abolished,  as  being  an 
unreasonable  and  oppressive  relic  of  the  feudal  system,  rejiugnant  to  the  pol- 
icy of  our  institutions. 

Youngblood  v.  Lowry,  2  McCord,  39;  Dalgleish  v.  (Jrandy,  Cam.  &  Nor.  22; 
Deanes  r.  Eice,  3  Batt.  431;  Bohm  v.  Dunphy,  1  Mon.  T.  by  which  it  appears 
that,  in  Montana  Territory,  the  common-law  remedy  by  distress  has  been  super- 
seded by  the  statutory  remedies  given  by  statute.  So,  in  Mississippi,  it  is  held 
that  the  statutory  remedies  have  superseded  the  common-law  right  of  distress. 
(Marge  v.  Dyche,  42  Miss.  347.) 

1  Bremer  v.  Bigelow,  8  Kan.  497.  "  A  tenant  cannot,  as  a  rule,  dispute  the  title 
or  right  of  possession  of  his  landlord,  nor  of  any  other  person  who  has  suc- 
ceeded to  the  rights  of  his  landlord,  as  long  as  such  tenant  holds  possession  de- 
rived originally  from  his  landlord." 

Taylor's  Landlord  and  Ten.  Sec.  705;  To^misend  v.  Davis,  Forrest,  120;  Simmons 
V.  Robertson,  27  Ark.  50;  Prevot  v.  Lawrence,  51  N.  Y.  219.  "The  tenant  can- 
not, during  the  term  of  a  lease,  hold  out  adverse  possession  against  the  land- 
lord by  the  mere  intention  so  to  hold,  and  without  doing  some  act  which  would 
amount  to  adverse  possession  by  a  tenant  who  enters  under  a  lease."  (Abbey 
Homestead  Association  v.  Willard,  48  Cal.  614;  St.  John  v.  Quitzen,  Sup.  Ct.  111. 
June,  1874.) 

' '  Whilst  it  is  true,  as  a  general  iiroposition,  that  a  tenant  cannot  dispute  his 
landlord's  title,  yet  he  may  show  that  it  has  terminated  by  its  own  limitation." 
(TUghman  v.  Little,  13  111.  239;  Franklin  v.  Palmer,  50  111.  202.) 

2  Jenckes  v.  Cook,  9  R.  I.  520.  "  One  whose  signature  to  a  lease  has  been  ob- 
tained through  fraud  or  misrepresentations,  is  not  precluded  from  denying  the 
lessor's  title."    (Taylor's  Land,  and  Ten.  Sec.  705.) 


863  LANDLORD  AND  TENANT.  §  306 

He  may  also  set  up  against  his  landlord  the  title  under  which 
he  leased  from  him ;  may  buy  in  the  same  at  sheriff's  sale  in  an 
action  against  his  lessor,  or  at  a  tax  sale,  unless  he  was  bound 
to  pay  the  taxes,  and  the  title  thus  acquired  he  may  oppose  to 
his  landlord's  claim  for  the  premises  ;  and  ^  unless  he  received  the 
possession  from  the  landlord,  the  tenant  may  assail  the  lease 
by  showing  that  he  paid  rent  imder  a  mistake  of  facts,  there 
being  a  recognized  distinction  between  a  deliberate  entry  into 
possession  under  a  lease,  and  an  acknowledgment  of  title  by 
paying  rent  for  premises  which  are  in  the  possession  of  the 
tenant.^ 

§  305.  As  to  "svaste  in  farming  leases. — The  general  defi- 
nition of  the  word,  "  a  spoil  or  destruction,  either  voluntary  or 
permissive,  of  the  houses,  lands,  or  tenements,  to  the  damage  of 
him  who  is  in  reversion  or  remainder,"  does  not  go  enough  into 
details  to  be  of  value. 

Waste  may  be  incurred  in  respect  to  the  soil,  as  well  as  to 
buildings,  trees,  fences,  or  even  live-stock,  and  the  law  regards 
as  waste  every  act  or  omission  Avhich  does  a  permanent  injury 
to  the  inheritance  ;  and  even  in  the  matter  of  repairs,  if  the  ten- 
ant thereby  has  added  to  the  permanent  value  of  the  premises, 
to  remove  them  is  waste.^ 

Destruction  of  farm  buildings,  fences,  and  other  structures, 
by  the  elements,  becomes  waste  when  it  might  have  been  avoided 
by  the  exercise  of  an  ordinary,  reasonable  exercise  of  care  and 

1  Miller  v.  McBrier,  14  S.  &  E.  382;  Newman  v.  Rutter,  8  Watts,  51;  Taylor's 
Land,  and  Ten.  705;  Miller  v.  Bonsaden,  9  Ala.  317.  "  So  if  he  buy  in  the  whole 
or  part  of  the  lessor's  title  at  a  tax  or  execution  sale,  or  by  private  purchase,  it 
is  a  proportionate  defense  to  suit  for  reuL  or  ejectment."  (Nellis  v.  Lathrop,  22 
Wend.  121;  Evertsonv.  Sawyer,  2  Wend.  507.) 

2  "  There  is  a  difference,  also,  whether  the  party  has  received  possession  from 
the  lessor  of  the  plaintiff,  or  has  merely  admitted  his  title  by  paying  rent.  In 
the  former  case,  he  is  estopped  from  denying  it  without  any  title  at  all;  but  in 
the  latter,  the  defendant  may  rebut  the  presumption  arising  from  such  payment, 
by  showing  that  he  paid  the  rent  under  a  mistake  or  through  misrepresenta- 
tions." (Taylor's  Land,  and  Ten.  Sec.  707 ;  EemU  v.  Robinson,  1  Ring.  147;  Flem- 
ing V.  Gooding,  10  Ibid,  549;  Fenner  v.  Duplock,  2  Ring.  10;  Rogers  v.  Pitcher, 
6  Taunt.  202.) 

3  Co.  Lit.  536;  2  Roll.  Abr.  816,  1,  15.  "Voluntary  waste  consists  in  doing 
something  which  the  tenant  is  prohibited  by  law  from  doing;  while  permissive 
waste  allows  something  to  happen  which  he  is  by  law  bound  to  prevent.  The 
one  is  an  offense  of  commission,  the  other  of  omission."  (McGregor  v.  Brown, 
10  N.  y.  114;  Livingston  v.  Reynolds,  2  Hill,  157.) 


§§  306-8  LANDLORD    AND    TENANT.  364 

precaution ;  and  so  of  loss  by  fire — it  is  waste  when  occurring 
through  the  tenant's  carelessness.^ 

§  306.   Right  of  tenant  to  cut  fire-'wood. — In  the  matter 

of  cutting  wood,  it  is  not  necessarily  waste  for  the  tenant  so  to  do ; 

manifestly,  to  cut  fire-wood  from  the  trees  of  an  orchard,  or  from 

timber-trees,  which,  from  their  position,  have  an  especial  value 

to  the  premises,  is  waste  ;  while  to  cut  trees  which  are  not  timber, 

or  errowins:  in  defense  of  or  to  ornament  the  house,  or  fruit- 
ed o 

trees,  growing  in  an  orchard  or  garden,  will  amount  to  waste, 
and  local  custom  and  particular  circumstances  must  be  taken 
into  account  in  determining  whether  the  cutting  of  any  given 
wood  is  waste  or  not.^ 

§  307.   Tenant's  duty  to  guard  property  against  injury. 

— The  tenant,  under  farming  lease,  is  bound  to  protect  the  prop- 
erty from  injury  to  the  extent  of  his  ability ;  he  is  not  an  in- 
surer against  casualties,  but  the  law  implies  a  covenant  on  his 
part  to  exercise  over  the  property  leased  the  same  care  which  a 
prudent  person  would  ordinarily  manifest  in  that  of  his  own 
property. 

The  landlord  may  look  to  his  tenant  to  make  good  all  injuries 
to  the  premises  while  in  possession  of  the  tenant,  regardless  of 
whether  caused  by  the  act  or  negligence  of  the  lessee  or  by  a 
stranger.  While  the  possession  and  control  of  the  property 
rests  with  the  tenant,  the  landlord,  being  deprived  of  the  power 
to  protect  it,  may  rely  upon  the  covenant  against  waste.^ 

§  308.  The  right  to  remove  fixtures  which  the  tenant  has 
placed  upon  the  leased  premises  appears  generally  to  have  been 
conceded.  The  rules  concerning  fixtures  are  to  be  construed 
with  the  greatest  liberality  in  favor  of  tenants,  while  between 

1  "If  a  house  be  destroyed  by  a  tempest,  fire  from  lightning,  or  the  like,  which 
is  an  act  of  Providence,  it  is  not  waste,  for  actus  Dei  nemini  facit  injuriam;  yet 
it  becomes  so  if  the  damage  done  by  the  tempest  was  occasioned  by  the  tenant's 
previous  neglect  to  repair,  or  if  he  does  not  forthwith  proceed  to  repair." 
(Taylor's  L.  and  T.  Sec.  347;  Moore,  62;  Viner's  Abr.  Waste,  1.) 

2  Taylor's  L.  and  T.  Sec.  305. 

3  "In  the  absence  of  a  special  agreement  to  the  contrary,  the  tenant  is  lia- 
ble to  the  landlord  for  all  waste,  by  whomsoever  committed;  having  his  right 
of  action  over  against  the  actual  wrong-doer."  (Parrott  v.  Barney,  2  Abb.  U. 
S.  197.) 


365  LANDLORD    AND    TENANT.  §  308 

vendor  and  vendee,  heir  and  executor,  mortgagor  and  mort- 
gagee, the  strictest  construction  obtains.^ 

It  is,  however,  essential  that  the  tenant  remove  his  fixtures  with- 
out permanent  injury  to  the  freehold,  and,  unless  he  can  do  so,  his 
right  is  lost.  It  cannot,  perhaps,  properly  be  admitted  that  the 
tenant  has  a  riglit  to  remove  his  fixtures.  It  may  more  prop- 
erly be  said  that  the  tenant  has  a  privilege,  rather  than  a  right, 
to  remove  his  fixtures  ;  and  he  must  exercise  his  privilege,  if  at 
all,  before  his  interest  expires.  He  cannot  do  it  afterward,  be- 
cause the  right  to  possess  the  land  and  fixtures,  as  part  of  the 
realty,  immediately  upon  the  termination  of  the  lease  reverts 
to  the  landlord.^ 

1  Tate  V.  Blackburn,  48  Miss.  1;  Taylor's  L.  and  T.  Sec.  544;  Pennybecker  ?;. 
jVIcDougall,  48  Cal.  IGO,  in  -which  it  is  held  that  a  portable  fence,  made  of  posts 
and  boards,  and  resting  on  the  surface,  is  personal  property. 

"  The  legislature  of  this  State  cannot  authorize  parties  who  have  placed  im- 
provements, which  have  become  a  part  of  the  realty,  on  public  lands  of  the 
United  States,  to  remove  the  same  after  the  lands  have  become  private  prop- 
erty."   (Ibid.) 

"  If  buildings  and  fences,  which  are  erected  on  public  lands  of  the  United 
States,  are  not  attached  to  the  soil,  and  are  not  a  part  of  the  realty,  the  United 
States  has  no  interest  in  them,  and  they  do  not  pass  to  a  purchaser  from  the 
United  States,  and  the  person  who  constructed  them  has  a  right  to  remove  them 
after  a  patent  has  isstied  to  the  purchaser."    (Ibid. ) 

"  A  wooden  building  standing  ujion  blocks  and  rollers,  so  that  it  could  be  re- 
moved without  disturbing  the  freehold,  and  which  was  buHt  for  the  purpose  of 
removal,  if  necessary,  may  be  regarded  as  a  movable  fixture  and  the  personal 
property  of  the  tenant."     (Farrant  v.  Farrant,  Sup.  Ct.  Dist.  of  Col.  May,  1875.) 

""^Ti ether  fixtures  are  personalty  or  realty,  is  a  question  of  intention,  and 
not  of  physical  annexation."    (Seegar  v.  Pellitt,  Sup.  Ct.  Term,  Feb.  13th,  1875.) 

"  Under  the  earlier  decisions,  physical  annexation  was  undoubtedly  the  test; 
but  this  doctrine  no  longer  prevails.  The  true  rule  to  be  deduced  from  the  au- 
thorities is,  that  it  is  not  the  character  of  the  physical  connection  ^vith  realty 
which  constitutes  the  criterion  of  annexation,  but  it  is  the  intention  to  annex. 
Where  a  tenant  puts  in  fixtiires  or  conveniences  for  his  own  comfort,  the  law 
raises  no  presumption  that  he  intended  them  for  permanent  improvements  to 
be  left  for  the  benefit  of  the  landlord,  and,  as  a  general  rule,  he  will  be  entitled 
to  remove  them  during  the  term.  For  any  injury  to  the  freehold,  by  reason  of 
such  removal,  he  is,  of  course,  liable  to  the  landlord  in  damages.  The  matter  of 
fixtures  should  be  left  to  the  jury  as  a  question  of  intention;  and  to  apply  the 
law  to  certain  facts  of  the  case,  and  instruct  the  jury  that  if  there  was  physical 
annexation  the  articles  could  not  be  removed,  is  error."  (Ibid,  citing  Voorhies 
r.  Freeman,  2  W.  &  S.  116.)  "The  criterion  of  a  fixture,  in  a  mansion-house  or 
dwelling,  is  actual  and  permanent  fastening  to  the  freehold;  but  this  is  not  the 
criterion  of  a  fixture  in  a  manufactory  or  a  mill."  (Walker  v.  Sherman,  20 
Wend.  630;  Farrar  r.  Stackpole,  6  Green,  157.) 

-  Ibid,  Sec.  551.  "The  law  imposes  no  obligation  on  the  landlord  to  pay  the 
t.mant  for  buildings  erected  by  him  on  the  demised  premises.    The  rule  that  all 


§  309  LANDLORD    AND    TENANT.  366 

§  309.  Distinction  against  tenants  under  farming  leases, 

in  the  matter  of  removal  of  fixtures. — The  liberality  and  consid- 
eration to  tenants,  in  permitting  the  removal  of  fixtures,  appears 
to  have  been  founded  upon  motives  of  public  policy  for  the 
encourao-ement  of  science  and  the  mechanic  arts  ;  but  from  a 
peculiar  distinction  against  agricultural  tenants,  they  have  been, 
to  a  great  extent,  debarred  from  the  privilege  of  removing  their 
fixtures,  which  have  been  erected  for  agricultural  purposes, 
though  it  is  difificult  to  perceive  why  farming  tenants,  as  to  such 
fixtures,  should  stand  upon  a  less  favorable  footing  than  me- 
chanics as  to  trade  fixtures,  when  the  relative  importance  of 
the  two  arts  is  considered;  and  it  is  to  be  observed  that  the 
tendency,  of  late  years,  in  America,  has  been  to  ignore  such 
distinction.^ 

buildings  become  part  of  the  freehold  has  been  relaxed  only  so  far  as  to  give 
the  tenant  a  right  of  removal  while  he  remains  in  possession."  (Rutter  v. 
Smith,  2  Wall.  491.) 

"In  Chilley  v.  Church-wardens  of  West  Ham.  32  L.  T.  (N.  S.)  486,  the  Court  of 
Queen's  Bench  considered  the  difficult  question  as  to  whether  certain  objects 
were  fixtures,  or  mere  chattels.  It  appeared  that  the  premises  of  a  distillery 
contained  tanks  which  formed  the  roofs  of  rooms  and  houses,  boiling  backs  and 
mash  tuns,  lying  on  brick  j)iers  against  the  walls  which  formed  the  floors  of 
sorae  of  the  rooms,  and  were  connected  by  pipes  to  other  houses;  also,  reser- 
voirs, and  other  articles  necessary  for  the  process  of  distilling.  They  were  all 
heavy,  and  either  unattached,  except  by  the  communicating  pipes,  to  the  walls 
or  piers,  or  were  fastened  by  screws  for  the  purpose  of  being  steadied.  Each 
was  to  be  bought  and  sold  as  a  separate  article,  and,  if  all  were  removed,  the 
premises  might  be  used  for  other  manufacturing  purposes.  It  was  held  that 
the"  articles  were  not  fixtures,  but  chattels.  AVhen  the  article  is  attached  to  the 
land  merely  by  its  own  weight,  it  is  usually  considered  a  mere  chattel.  (Wilt- 
shear  'v.  Cottrel,  1  E.  &  B.  674.)  Still,  if  the  intention  is  to  make  it  a  part  of  the 
land,  it  becomes  a  part  of  the  land.  (D'Eyncourt  v.  Gregory,  L.  E.  3  Eq.  382.) 
The  true  rule  is  expressed  in  Holland  v.  Hodgdon,  L.  R.  7  C.  P.  328,  a  very  elab- 
orately considered  case,  where  it  is  laid  down  that  articles  not  otherwise  at^ 
tached  to  the  land  than  by  their  own  weight  are  not  to  be  considered  as  part  of 
the  land,  unless  the  circumstances  are  such  as  to  show  that  they  were  intended 
to  be  part  of  the  land,  the  onus,  of  showing  that  they  were  so  intended,  lying  on 
those  who  assert  that  they  have  ceased  to  be  chattels ;  and  that,  on  the  contrary, 
an  article  which  is  affixed  to  the  land,  even  slightly,  is  to  be  considered  as  part 
of  the  land,  unless  the  circumstances  are  such  as  to  show  that  it  was  intended, 
all  along,  to  continue  a  chattel,  the  onus  lying  on  those  who  contend  that  it  is  a 
chattel."    (Albany  Law  Journal,  July  3d,  1875.) 

The  right  of  removal  is  determined  by  an  entry  for  condition  broken.  (Whip- 
pley  V.  Dewey,  8  Cal.  8G;  Davis  v.  Eyton,  7  Bing.  154.)  Or  by  a  judgment  in 
ejectment.     (Minshall  v.  Lloyd,  2  M.  &  W.  450;  Penton  v.  Robart,  2  East,  88. ) 

1  Taylor's  L.  and  T.  Sec.  548.  "  This  privilege,  however,  has  not  been  extended 
to  the  case  of  buildings,  out-houses,  etc.,  which  have  been  erected  for  agricul- 
tural purposes ;  though  it  is  difficult  to  perceive  why  such  fixtures  should  stand 


367  LANDLORD    AND    TENANT.  §  309 

upon  a  less  favorable  footing  than  trade  fixtures.  The  industry  of  the  farmer 
will,  of  course,  be  more  productive  in  proportion  to  the  improved  condition  of 
his  buildings,  and  his  advantages  for  rearing  stock  and  storing  produce ;  and  it 
seems  but  a  narrow  policy  which  refuses  to  the  agricultural  tenant  the  same 
protection  that  is  extended  to  the  improvement  of  the  manufacturer." 

The  distinction  is,  however,  maintained  by  the  common-law  authorities. 
(Elwes  I'.  Mawe,  3  East,  38.)  But,  by  English  statute,  (14  and  15  Vict.  Chap.  25) 
the  agricultural  tenant  is  protected  in  his  privilege  to  remove  fixtures  from 
leased  land,  where  he  can  do  so  without  permanent  injury  to  the  realty. 

In  the  United  States,  the  distinction  still  stands  recognized,  although  innova- 
tions are  constantly  being  made  upon  it.  (Van  Ness  v.  Packard,  2  Pet.  137 ; 
"VMiiting  V.  Brastow,  4  Pick.  310.) 


t 


§  310  PARENT   AND    CHILD.  368 


CHAPTER  XXVII. 

PABENT  AND  CHILD. 

§  310.  Duty  of  the  father  to  support  his  cliild. 

§  311.  The  father  must  educate  his  children. 

§  312.  The  contracts  of  infants  are  voidable,  not  void. 

§  313.  The  parent's  right  to  earnings  of  his  child. 

§  314.  The  father  may  emancipate  his  child. 

§  315.  Parent  responsible  for  child's  torts,  when. 

§  31G.  Right  of  recovery  for  injury  to  child. 

§  317.  Duties  of  the  child  to  its  parent. 

§  318.  Transactions,  between  parent  and  child,  as  to  strangers. 

§  310.    The   duty  of  the  father   to  support  his  child, 

while  it  is  of  tender  years,  necessarily  results  from  the  relation 
of  the  parties  to  each  other  and  the  demands  of  civilized 
society ;  the  infant  cannot  support  himself,  and  there  can  only 
be  a  question  as  to  whether  the  State  or  his  parents  shall  do 
this,  for  there  is  somewhat  of  a  duty,  both  on  the  part  of  the 
commonwealth  and  of  those  to  whom  the  child  owes  its  exist- 
ence, to  guard  and  provide  for  its  necessities  through  the  period 
of  infancy.^ 

The  natural  affections  appear  to  decide  the  question,  and 
give  the  desire  to  the  parents  to  render  to  their  child  this  serv- 
ice ;  but,  as  an  abstract  proposition,  it  is  difficult  to  determine 
how  far  the  law  imposes  on  them  the  obligation  to  do  so. 

The  rulings  of  the  English  Courts  are  generally  adverse  to 
considering  the  parent  legally  bound  to  support  the  child, 
althous^h  recoo-nizino-  the  moral  one  to  do  so ;  but  the  child  is 
regarded  as  the  father's  agent,  to  the  extent  that  he  may  bind 
him  in  procuring  necessaries  for  his  support,  unless  the  father 
provide  them.^ 

^  Parsons  on  Contracts,  Vol.  1,  Sec.  299;  Kent's  Com.  Vol.  2,  Sec.  189;  Palsy's 
Moral  Philosophy,  p.  233;  Taylor's  Elements  of  Civil  Law,  p.  385. 

2  Simpson  v.  Robertson,  1  Esp.  17;  Urmstone  r.  Newcomen,  4  A.  &  E.  899: 
Baker  r.  Keen,  2  Stark.  501;  Fluck  v.  Tollemache,  1  C.  &  P.  5;  Blackburn  v. 
Mackay,  1  C.  &  P.  1  (1823);  Seaborne  r.  Moddy,  9  C.  &  P.  497  (1840);  Mortimer 


369  PARENT   AND    CHILD.  §  311 

In  the  United  States,  the  decisions  are  not  uniform  in  char- 
acter on  this  point,  but  the  general  tenor  of  them  has  been  to 
establish  the  legal  liability  of  the  parent  for  necessaries  fur- 
nished to  the  infant,  on  the  ground  that  the  moral  obligation  of 
the  father  to  provide  for  his  child's  necessities  is  also  a  legal 
one,  which  the  Courts  may  enforce.^ 

§  311.  The  father  must  educate  his  children. — It  is  the 

duty  of  the  parent  to  educate  his  children,  as  it  is  to  clothe  and 
feed  them ;  and  as  he  must  be  the  best  judge  of  what  is  for 
them  proper  food  and  raiment,  so  upon  him,  to  a  great  extent, 
must  devolve  the  duty  and  responsibility  of  deciding  what 
studies  they  shall  pursue.  He  should  be  held  to  the  perform- 
ance of  this  duty,  and  to  the  expense  of  properly  schooling  the 

V.  Wright,  G  M.  &  W.  482,  (1840)  per  Parke,  B.  "It  is  a  clear  principle  of  law, 
that  a  father  is  not  under  any  legal  liability  to  pay  his  son's  debts." 

And  in  Shelton  v.  Sprigett,  20  E.  L.  and  E.  281,  the  law  is  declared  to  be  well 
settled  that,  without  some  contract,  express  or  implied,  the  father  is  not  liable 
for  necessaries  furnished  to  his  son. 

1  Stanton  r.  "SVilson,  3  Day,  37 ;  In  the  Matter  of  Eyder  v.  Payne,  11  Pajme, 
187;  McKnight  v.  Walsh,  23  N.  J.  Eq.  136;  Buckley  v.  Howard,  35  Tex.  565.  A 
father  is  bound  to  raise  and  educate  his  children  at  his  own  expense,  and  is  not 
exonerated  from  this  liability  by  the  fact  that  his  children  have  estates  of  their 
own,  of  which  he  is  guardian,  unless  it  apjiears  that  he  is  unable  to  do  so. 

Plaster  v.  Plaster,  47  111.  290.  Where  the  Court,  in  divorce,  awarded  the  custody 
of  the  children  to  the  mother,  the  father  was  held  bound  to  provide  for  the  sup- 
port and  education  of  the  children. 

Hunt  V.  Thompson,  3  Scam.  180;  Benson  v.  Eemmington,  2  Mass.  113;  Wliipple 
V.  Dow,  Ibid,  415;  Dawes  v.  Howard,  4  Ibid,  97.  But  this  doctrine  does  not 
stand  witliout  contradiction. 

See  Gordon  v.  Potter,  17  Vt.  350,  decided  in  1845,  per  Eedfield,  J. :  "  It  is  obvi- 
ous that  the  law  makes  no  provision  for  strangers  to  furnish  children  with 
necessaries  against  the  will  of  i)arents,  even  in  extreme  cases.  For,  if  it  can  be 
done  in  extreme  cases,  it  can  be  done  in  every  case  where  the  necessities  exist." 
See,  also,  Eaymond  v.  Lloyd,  10  Barb.  483,  Chilcott  v.  Trimble,  13  Barb.  502,  and 
Kelly  V.  Davis,  49  N.  H.  (1870)  187,  in  which  it  was  held  that  a  parent  cannot 
be  charged  for  necessaries  furnished  by  a  stranger  to  his  minor  child,  except 
upon  tha  joromise  of  the  parent,  express  or  implied,  to  pay  for  them. 

Such  promise  is  not  to  be  implied  from  an  omission  of  duty,  resting  in  moral 
obligation  merely. 

Parsons  on  Contracts,  Vol.  1,  Sec.  305.  "  The  law  can  hardly  be  considered  as 
positively  settled,  either  in  England  or  this  country.  But,  resting  not  so  much 
on  direct  and  specific  authorities  as  on  the  general  character  of  American  juris- 
prudence on  this  subject,  we  would  state,  as  strongly  prevailing  rules  here,  that 
where  goods  are  supplied  to  an  infant  which  are  not  necessaries,  the  father's 
authority  must  be  proved  to  make  him  liable ;  where  they  are  necessaries,  the 
father's  authority  is  presumed,  unless  he  supplies  them  himself,  oris  ready  to 
supply  them."    (Ibid,  Sec.  306,  to  the  same  effect.) 

Farm— 24. 


§  312  PARENT   AND    CHILD.  370 

child  ;  even  If  the  latter  has  separate  estate,  sufficient  to  provide 
therefrom  means  to  defray  the  expense,  the  accidental  circum- 
stance of  the  child  being  so  situated  does  not  affect  the  duty 
which  the  parent  owes  to  him  and  to  society.^ 

This  duty  extends  to  such  an  education  as,  in  the  good  judg- 
ment of  the  parent,  is  proper  and  sufficient  for  the  child,  by 
good  judgment  being  meant  such  as  is  exercised  by  ordinarily 
prudent  persons,  and  as  is  commensurate  with  the  means  of  the 
father ;  and  where  the  father's  means  are  small  and  the  child 
has  property  of  his  own,  such  property  may  be  applied  to  fur- 
nish means  for  an  education  above  what  the  father  could  afford 
to  give.^ 

The  parental  authority  over  a  child,  together  with  its  custody. 
Is  delegated  to  the  teacher  for  the  special  purposes  of  educa- 
tion, and  in  enforcing  necessary  rules  of  discipline  tlie  right  of 
punishment  Is  passed  temporarily  from  the  parent  to  the  teacher  ; 
but  this  does  not  deprive  the  parent  of  the  right  to  control  the 
studies  of  the  child  and  of  its  treatment  while  with  the  teacher, 
except  so  far  as  is  requisite  in  the  school  to  maintain  classes 
and  maintain  good  order ;  the  parent  has  the  right  to  dictate 
the  studies  to  be  pursued  by  the  child,  and,  to  some  extent,  the 
mode  of  pursuing  them.^ 

§  312.  The   contracts  of   an  infant   are  voidable,  but 

not  void;  that   is  to   say,  because  a  person  is  not  of  the  age" 
which  the  law  prescribes  as  that  of  maturity,  he  is  not  abso- 

1  Buckley  v.  Howard,  35  Tex.  570.  "Buckley,  as  tlie  father  and  natural 
guardian,  was  bound,  by  the  obligations  both  of  law  and  morality,  to  raise  and 
educate  his  children  at  his  own  expense,  and  the  law  gave  to  him  no  right  to 
deduct  from  or  cut  down  the  legacy  which  they  received  from  tlieir  mother, 
for  this  j)urpose." 

2  Kent's  Com.  193;  Ibid,  195.  "A  parent  who  sends  his  son  into  the  world 
uneducated,  and  without  skill  in  any  art  or  science,  does  a  great  injury  to  man- 
kind, as  well  as  to  his  own  family,  for  he  defrauds  the  community  of  a  use- 
ful citizen  and  bequeaths  to  it  a  nuisance." 

2  Buckley  v.  Howard,  35  Tex.  576. 

3  ]SIorrow  v.  Wood,  Sup.  Ct.  Iowa,  November,  1874.  "  A  parent  in  sending  his 
child  to  school  surrenders  to  the  teacher  such  control  over  the  child  as  is  neces- 
sary for  the  proper  government  of  the  school.  But  where  the  parent  desires 
that  the  child  shall  omit  a  part  of  the  regular  course  of  study,  and  so  directs 
him,  the  teacher  has  no  paramount  authority  to  enforce  the  study  of  the  omitted 
part,  and  corporal  punishment  of  the  child  for  disobedience,  under  such  circum- 
stances, is  an  unlawful  assault." 


371  PARENT   AND    CHILD.  §  313 

hitely  incapacitated  from  incurring  responsibilities  by  his  con- 
tracts, entered  upon  with  due  deliberation  ;  the  liability  of  an 
infant  is  such  that  he  may  avoid  it,  because,  for  his  protection 
against  fraud  or  undue  influence,  he  is  not  bound,  unless  his 
riper  judgment,  when  he  becomes  of  age,  ratifies  the  agreement, 
and  for  this  ratification,  a  mere  acknowledgment  that  the  debt 
existed,  or  that  the  contract  was  made,  is  not  enough ;  the  rati- 
fication must  be  sufficiently  formal  to  show  that  the  mind  of  ma- 
turity has  acted  upon  the  subject-matter.  It  need  not  be  a  pre- 
cise and  formal  promise ;  but  it  must  be  a  direct  and  express 
confirmation,  and,  substantially^  a  promise  to  pay  the  debt  or 
fulfill  the  contract,  and  it  must  be  apparent  that  the  adult,  de- 
liberately, with  the  knowledge  that  he  is  not  bound  by  the 
promise  made  by  him  when  a  child,  ratifies  and  assumes  the  ob- 
ligation, without  compidsion  to  the  other  party  or  his  agent.^ 

§  313.   The  parent's  right  to  earnings  of  the   child. — 

The  father  is  entitled  to  the  benefit  of  his  minor  child's  labor, 

1  2  Kent's  Com.  Sec.  234  et  seq.;  Par.sons  on  Contracts,  Vol.  1,  Sec.  323  et  seq. ; 
Harris  r.  Wall,  1  Exch.  122;  Hartly  r.  Wharton,  11  A.  &  E.  934;  Bingham  on 
Infancy,  45;  Zouch  r.  Parsons,  3  Burr,  1794;  Shropshire  r'.  Burns,  46  Ala.  108. 
"Contracts  of  an  infant  are  regarded  as  voidable  only,  not  void.  They  are 
capable  of  contirmation  by  acts  done  in  pursuance  of  them,  after  the  infant  has 
become  of  age.  And  any  acts  which,  if  done  by  the  infant,  after  attaining  his 
majority,  Avould  render  the  contract  binding  on  him,  will,  if  done  by  his  execu- 
tor or  administrator,  after  becoming  vested  with  the  infant's  estate,  render  the 
contract  binding  on  such  personal  representative." 

Kirwin  v.  ]\Iaxwell,  GG  N.  C.  45.  In  Iowa,  a  person  who  made  a  contract  when 
an  infant  cannot  disaffirm  it  if  the  other  party  had  good  cause  to  believe  him  of 
age.     (Iowa  Revision,  Sec.  2541;  Beller  v.  Marchant,  30  Iowa,  350.) 

Carrell  v.  Potter,  23  ^lich.  377.  "An  agreement  made  by  an  infant,  by  which 
ho  agrees  to  repay  money  which  he  has  received,  becomes  binding  ujion  him  if 
he  fails  to  disaffirm  it  within  a  reasonable  time  after  majority."  (Stuckemr. 
Yoder,  33  Iowa,  177;  Higley  v.  Barrow,  49  Me.  103. )  The  presumption  that  one 
who  made  a  sale  of  lands  Avlien  an  infant,  affirms  the  same,  arises  when,  after 
majority,  he  silently  sees  valuable  improvements  made  on  the  property,  and  it 
becomes  greatly  enhanced  in  value. 

Pety  V.  Roberts,  7  Bush.  (Ky.)  410;  2  Kent's  Com.  Sec.  238  et  seq.  Resulting 
from  these  premises,  a  minor  is  not  bound  by  his  contract  to  labor  for  a  specified 
term;  he  may  quit  service  before  the  expiration  of  his  contract  term,  and  re- 
cover from  his  employer  the  value  of  tlie  services  rendered.  (Ray  v.  Haines,  52 
111.  485;  Derocher  ?).  Continental  Mills,  58  Me.  217.) 

But  see  2  Kent's  Com.  Sec.  242.  "An  infant  has  a  capacity  to  do  many  acts 
valid  in  law.  He  may  bind  himself  as  an  apprentice,  or  make  a  contract  for 
service;  and  wages,  it  being  manifestly  an  act  for  his  benefit ;  but  when  bound 
he  cannot  dissolve  the  relation."  (Rex.  v.  Inhabitants  of  AVighton,  3  Barn.  &; 
Cress.  484;  Wood  v.  Fenwick,  10  Mees.  &  W.  195.) 


§  314  PARENT   AND    CHILD.  372 

certainly,  so  long  as  the  child  remains  Avith  him  and  is  depend- 
ent upon  the  paternal  support ;  and  it  is  to  be  presumed  that 
the  services  of  a  child,  residing  with  its  parent,  arc  rendered  to 
its  parent  without  compensation  ;  and  when  a  child  renders  serv- 
ice to  a  parent  after  the  child  becomes  of  age,  but  while  he  is 
a  member  of  the  parent's  family,  and  no  arrangement  or  agree- 
ment has  been  made  as  to  payment  of  such  services,  and  no  cir- 
cumstances are  shown  from  which  such  circumstances  can  be 
fairly  inferred,  the  child  cannot  recover  compensation  for  such 
services.-^ 

For  the  service  of  the  child  rendered  to  a  third  person,  it 
would  also  appear  that  a  like  rule  prevails  ;  the  father  is  entitled 
to  the  child's  earnings,  and  to  the  value  of  the  labor  and  services 
of  his  children  during  their  minority,  certainly,  until  it  is  shown, 
either  by  circumstances  or  direct  evidence,  that  the  father  has 
relinquished  his  claim  by  emancipating  the  child  from  parental 
control  and  responsibility.^ 

§  314.  The  father  may  emancipate  his  cliild,  and,  releas- 
ing him  from  parental  control,  give  to  the  child  the  power  to 
act  for  himself  and  retain  his  earnings.  This  power  of  a 
father  to    emancipate    his  minor  child    cannot  be  questioned ; 

1  Prickett  v.  Prickett,  20  N.  J.  Eq.  (5  C.  E.  Gr.)  478;  2  Kent's  Com.  Sec.  193. 
"  And  in  consequence  of  the  obligation  of  the  father  to  provide  for  tlie  mainte- 
nance, and,  in  some  qualified  degree,  for  the  education,  of  his  infant  children, 
he  is  entitled  to  the  custody  of  their  persons  and  to  the  value  of  their  labor  and 
services."    (1  Black.  Com.  453;  Peeves'  Domestic  Relations,  290.) 

"  2  Kent's  Com.  193;  Day  v.  Everett,  7  Mass.  145;  Benson  v.  Eemington,  2  Mass. 
113;  Plummer  v.  Webb,  4  Mason,  380;  Gifford  v.  Kollock,  3  Ware,  45.  A  father 
may  sue  in  admiralty  for  the  wages  of  his  minor  son.  (CifHn  i'.  Shaw,  3  "Ware, 
82 ;  The  Lucy  Ann,  3  "Ware,  253. )  A  father  may  receive  a  local  bounty  accru- 
ing to  his  minor  son,  who  entered  the  military  service  as  a  volunteer.  (Ginn  v. 
Ginn,  38  Ind.  526. ) 

A  widow  may  maintain  an  action  for  the  value  of  services  rendered  by  her 
infant  son,  who  is  suj)ported  by  her,  and  for  whom  no  guardian  has  been 
appointed  (Mathewson  v.  Perry,  37  Conn.  435;  Hammond  v.  Corbett,  50  N.  H. 
501;  Simpson  v.  Buck,  5  Lans.  N.  Y.  337);  and  the  fact  that  the  minor  is  not 
dependent  upon  the  mother,  but  contributes  to  her  support,  does  not  alter  the 
rule,  or  deprive  the  mother  of  the  right  which  the  law  confers.  (Simpson  v. 
Buck,  5  Lans.  N.  Y.  337.) 

Parsons  on  Contracts,  Sec.  S09.  "  Where  the  parent  is  thus  obliged  to  provide 
for  the  child  a  home  and  a  sufficient  maintenance,  so,  on  the  other  hand,  he  has 
the  right  to  the  custody  of  the  child  during  his  minority,  and  is  entitled  to  all 
his  earnings."    (State  v.  Baird,  3 Green,  196;  McBride  v.  McBride,  1  Bush,  15.) 


373  PARENT   AXD    CHILD.  §  314 

nor  can  there  be  any  doubt  as  to  the  effect  of  such  emanci- 
pation upon  the  relations  of  the  persons  who  are  parties  to 
it.  The  child  is  freed  by  emancipation  from  parental  control ; 
he  can  claim  his  earnings  thereafter,  as  against  his  father, 
and  is,  in  all  resj)ects,  his  own  man.. 

Emancipation  is  defined  as  "  an  act  by  which  a  person  who 
was  once  in  the  power  of  another  is  rendered  free  " ;  and  the 
adjudged  cases  show  that  the  doctrine  of  emancipation,  as 
actually  administered,  is  not  less  comprehensive  than  the  defi- 
nition.^ 

No  special  form  is  required  to  effect  such  emancipation, 
nor  is  it  requisite  that  there  should  be  any  special  agree- 
ment proved  between  the  parties,  parent  and  child ;  such  cir- 
cumstances as  constitute  evidence  of  an  understanding  between 
them,  to  the  effect  that  the  father  has  released  the  son  from 
parental  control,  are  sufficient. 

Every  relation  among  men,  whether  public  or  private,  may 
be  said  to  tell  its  own  story ;  that  is  to  say,  it  is  followed 
by  certain  sequences  that  argue  the  existence  of  the  relation. 
If  a  father,  in  fact,  emancipates  his  minor  child,  all  observa- 
tion and  experience  would  lead  us  to  expect  corresponding 
changes  in  their  intercourse  with,  and  in  their  treatment  of, 
each  other ;  and,  such  changes  being  observable,  open,  and 
notorious,  of  such  a  character  as  to  fairly  induce  the  belief 
that  the  son,  with  the  father's  consent,  acts  for  himself  in 
business,  raises  a  presvimption  of  emancipation.^ 

1  Morse  v.  "Welton,  6  Conn.  647;  Jenny  v.  Alden,  12  Mass.  375;  Clulson  v.  Phil- 
lips, 1  Yt.  41;  Gale  v.  Parrott,  1  N.  H.  28;  Lackman  v.  Wood,  25  Cal.  147;  Keen 
V.  Sprague,  3  Green,  77.  A  father,  acting  in  good  faith,  may— though  insolvent 
at  the  time— make  a  valid  gift  to  his  minor  son  of  his  time  and  future  earnings. 
(Atwoodr.  Holcomb,  39  Conn.  270.)  "A  father  may  allow  his  minor  child  to 
contract  for  himself,  and  hold  his  wages;  and,  after  they  are  earned,  cannot 
withdraw  his  consent."    (Torrens  v.  Campbell,  74  Penn  St.  470.) 

2  1  Parsons  on  Contracts,  Sees.  310-11;  Jenny  v.  Alden,  12  Mass.  375;  Varney  v. 
Yoimg,  11  Vt.  258;  Bray  v.  Wheeler,  3  Williams,  514;  Cannover  v.  Cooper,  3 
Barb.  115;  Cloud  r.  Hamilton,  11  Humph.  104;  AVhiting  v.  Earl,  3  Pick.  301;  1 
Black.  Com.  453;  2  Kent's  Com.  Sec.  194,  Note  a.  A  father  consented,  in  good 
faith,  that  his  minor  daughter  should  receive  to  her  own  use  sums  which  she 
might  thereafter  earn  by  sewing.  Held,  that  money  thus  earned  by  the  daugh- 
ter, while  continuing  to  receive  support  from  her  father  and  to  act  as  his  house- 
keeper, was  not  subject  to  the  payment  of  the  father's  existing  debts.  (John- 
son V.  Silsby,  49  N.  H.  453.) 

A  father  who,  when  able  to  support  his  minor  son,  forces  him  to  labor  abroad 


§  315  PARENT    AND    CHILD.  374 

§  315.  Parent   responsible  for    torts    of    child,    when. 

— A  father  is  not  to  be  held  responsible  for  the  torts  of  his 
child,  unless  in  such  cases  as  he  may  reasonably  be  inferred  as 
having  assumed  such  responsibility  by  inducing  the  commission 
of  the  wrong.  The  Courts  have  generally  manifested  consider- 
able reluctance  to  hold  the  father  liable  as  a  trespasser  for  the 
wrongful  acts  of  his  children,  and  there  is  apparent  a  desire  to 
check  the  tendency  of  juries  to  hold  the  father  liable  for  what- 
ever evil  his  son  may  do.^ 

The  relation  of  a  parent  to  his  child  in  the  matter  of  such  re- 
sponsibility differs  materially  from  that  of  a  hui^band  to  his 
wife.  In  the  latter  instance,  he  may  be  held  for  injuries  com- 
mitted by  her,  but  such  is  not  the  effect  of  the  former  relation. 
The  husband,  under  the  rules  of  common  law,  has  the  right  not 
only  to  all  the  property,  but  the  fruits  of  the  labor,  of  the  wife, 
while,  as  to  the  child,  the  father  has  but  little  more  than  the 
right  to  claim  his  wages. 

It  has  been  held,  in  a  few  instances,  that  the  father  may  be 
sued  in  trespass  for  an  injury  committed  by  liis  son,  when  the 
act  complained  of  was  committed  in  the  father's  presence  by 
the  son,  and  this  is  probably  the  extent  to  which  the  implied 
assumption  of  responsibility  can  safely  be  carried ;  ^  and  the  rule 
now  appears  to  be  settled  that  from  the  existence  of  the  rela- 
tion of  a  father  to  his  child  alone  no  responsibility  for  the  torts 

for  a  liveliliood,  is  not  entitled  to  liis  earnings.  The  law  then  implies  an  eman- 
cipation; and  the  son  may  maintain  an  action  for  money  had  and  received,  if 
the  father  appropriates  the  earnings  to  another  use  than  that  for  Avhich  the  son 
delivered  them  to  him.    (Farwell  v.  Farwell,  3  Houst.  [Del.]  G33.) 

And  it  has  been  held  that  an  infant,  whose  father  is  dead,  and  whose  mother 
is  married  again,  is  entitled  to  his  earnings.     (Freto  v.  Brown,  4  Mass.  G75.) 

r>xit  it  is  held  that  the  emancipation  of  an  infant  by  his  father  does  not  en- 
large tlie  child's  capacity  to  make  valid  contracts,  (Person  v.  Chase,  37  Vt.  047) 
nor  A'acate  the  rule  that  estoppels  do  not  apply  to  infants.  (Lackman  v.  Wood, 
25Cal.  152-3.) 

1  INIoou  V.  Towers,  8  C.  B.  (K  S.)  Gil;  Strahl  v.  Levan,  39  Penn.  St.  177;  Lash- 
brook  V.  Patten,  1  Duval,  316;  Cowden  v.  Wright,  24  Wend.  429. 

-  In  Missouri,  it  was  decided  that  a  father  is  not  responsible  for  an  assault 
committed  by  his  infant  son  uiiou  tlie  child  of  a  neighbor,  unless  it  was  estab- 
lished that  the  boy  was  of  a  vicious  disposition  and  habits,  and  that  the  father 
knew  it  at  the  time.     (Baker  v.  Haldeman,  24  Mo.  219.) 

So,  in  New  York,  the  same  rule  was  given  in  a  case  wliere  defendant's  minor 
daiaghter,  in  the  father's  absence,  and  without  his  authority  or  approval,  set  a 
dog,  not  ordinarily  a  vicious  animal,  upon  the  plaintiff's  hog,  which  was 
thereby  bitten  and  killed.    (Tifft  v.  Tifft,  4  Denio,  175.) 


375  PARENT  AND  CHILD.  §  316 

of  the  latter  can  be  imposed  upon  the  former.^  An  opinion 
appears  to  have  prevailed,  to  some  extent,  that  a  father  must 
answer  for  all  the  civil  injuries  inflicted  by  his  child,  and  we 
may  suppose,  therefore,  that  there  is  some  foundation  for  this 
sentiment  in  the  common  sense  of  mankind;  but  our  unwritten 
law  imposes  no  such  liability,  and  in  view  of  the  rulings  of  the 
Courts  it  must  be  regarded  as  without  foundation.^ 

§  316.  Right  of  recovery  for  injury  to  child. — Where  a 
child  suffers  wrong  he  may  maintain  his  action  for  damages,  and 
besides  this,  the  parent  may  claim  indemnity  for  such  loss  as  he 
may  suffer  by  deprivation  of  the  services  and  labor  of  the 
child,  together  with  expenses  incurred  in  illness  caused  by  the 
injury. 

The  common-law  rule  puts  the  parent's  right  to  recovery  for 
injuries  to  the  child  upon  the  same  basis  as  that  of  the  master 
Avlien  he  is  deprived  of  the  services  of  a  servant,  and  limits  him 
to  compensation  only  for  such  loss,  with  necessary  expenses  in- 
curred in  cure  of  the  injured  person,  making  the  loss  of  services 
the  gist  of  the  action  ;  so  that  if  the  child  is  too  young  to  be  of 
service,  or  is  by  any  cause  incapable  of  performing  any  services, 
the  foundation  fails,  and  there  may  be  question  whether,  in  view 
of  the  fact  that  from  extreme  youth  or  incapacity  there  can  be 
no  element  of  service,  the  father  could  even  maintain  a  special 
action  for  necessary  expenses  by  him  m  having  a  child  cured 
who  could  not  act  the  part  of  a  servant.^ 

In  the  United  States,  the  rule  is  more  liberal  toward  the  par- 
ent,  and,  because  of    the  duty  which  all  laws  of  nature  and 

iSchouler's  Dom.  Eel.  361-2;  McTNtanus  v.  Priokett,  1  East,  106;  Foster  v. 
Essex  Bank,  17  Mass.  479;  Campbell  r.  Stakes,  2  Wend.  137;  Bullock  v.  Bab- 
cock,  3  Ibid,  391. 

2  Paulin  V.  HoAvser,  G3  111.  315,  which  was  a  suit  for  damages  against  the 
father  for  injuries  by  a  dog  being  set  upon  a  hog  by  defendant's  son.  The 
language  of  the  decision  is  :  "A  father  is  not,  nor  can  he  be,  held  responsible 
for  the  unauthorized  trespasses  of  his  minor  children.  In  that  respect,  the  child 
occupies  the  same  relation  to  the  father  as  does  a  servant.  He  is  liable  for  the 
acts  of  either  when  performed  under  his  directions  or  in  the  course  of  their 
general  employment;  biit  not  for  their  trespasses  committed  independent  of 
their  craployment,  or  not  under  directions." 

3  2  Hilliard  on  Torts,  518-29;  Addison  on  Torts,  697;  Grimell  v.  Wells,  7  M.  & 
Or.  1041;  Eogers  v.  Smith,  17  Ind.  323;  Sykes  v.  Lawlor,  49  Cal.  237;  Dennis  u. 
Clark,  2  Cush.  347;  Hall  v.  HoUander,  7  Dowl.  &  Ky.  133;  4  Barn.  &  Cres.  CGO; 
Schouler's  Dom.  EeL  351-2. 


§  317  PARENT   AND    CHILD.  376 

society  recognize  as  imposed  on  the  parent,  of  properly  caring 
for  his  chikl  when  it  is  ill,  he  who  adds  to  the  care  and  expense 
which  these  laws  impose  must  bear  the  additional  expense  in 
cases  where  the  child  himself  could  maintain  the  action. 

The  departure  from  the  common-law  rvde  has,  however,  been 
made  with  no  inconsiderable  degree  of  hesitancy  and  caution, 
the  Courts  in  America  only  yielding  after  repeated  attacks 
upon  the  principle  involved ;  but  the  progress  toward  recogni- 
tion of  the  rights  of  the  parent  has  been  -steady,  until  they  ai-e 
now  fully  established.  Thus,  in  a  case  where  a  child,  too  young 
to  do  any  labor,  was  injured  by  a  mare,  alleged  to  be  vicious,  the 
father,  in  his  own  name,  brought  an  action  for  damages ;  defend- 
ant urged  the  common-laAV  rule,  but  the  Court  held  it  not  to  be 
applicable  in  Massachusetts,  and  decided  that  "  if  a  legitimate 
infant  child,  a  member  of  his  father's  houseliold,  and  too  young 
to  be  capable  of  rendering  any  service  to  his  father,  is  Avounded 
or  otherwise  injured  by  a  third  person,  or  by  a  mischievous  ani- 
mal belonging  to  a  third  person,  under  such  circumstances  as 
give  to  the  child  himself  an  action  against  such  person  for  the  per- 
sonal injury,  and  the  father  is  thereby  put  to  trouble  and  ex- 
pense in  the  care  and  cure  of  the  child,  he  may  maintain  an 
action  against  such  person  for  an  indemnity."  ^ 

§  317.  The  duties  of  the  child  to  its  parent  are  naturally 
of  a  less  onerous  character  than  such  as  are  imposed  upon  the 

1  Dermis  v.  Clark,  2  Cusli.  347;  Schouler's  Dom.  Rel.  352;  Sykes  v.  Lawlor, 
49  Cal.  236.  "The  current  of  English  authorities  is  to  the  effect  that,  in  au 
action  by  a  parent  for  injuries  to  his  minor  child  under  his  care,  the  gravamen 
of  the  action  is  the  loss  of  service,  as  incidental  to  which  he  may  recover  the 
expense  of  nursing  and  healing  the  cliild.  But  if  the  child  be  of  such  tender 
years  that  it  was  incapable  of  rendering  any  service  whatever,  there  could  be 
no  recovery,  even  for  the  expenses.  But,  in  this  country,  a  more  liberal  rule  has 
been  adopted;  and  the  best  considered  cases  hold  that,  inasmuch  as  it  is  a  duty 
enjoined  by  the  law  of  the  land,  as  well  as  by  the  laws  of  nature,  upon  the  parent 
to  care  for  and  heal  his  injured  minor  child,  he  who  willfully  or  negligently 
occasioned  the  injury  should  be  held  responsible  for  the  expenses  incuiTed,  with- 
out reference  to  the  capacity  of  the  child  to  render  service  to  the  parents." 

Karr  v.  Parks,  44  Cal.  46,  in  which,  moreover,  it  was  held  that:  "Where  an 
infant  child  sues,  by  her  father  as  guardian,  for  damages  for  suffering  and 
deformity  caused  by  the  act  of  a  ^acious  animal  belonging  to  defendant,  and 
recovers  judgment,  such  judgment  is  not  available  as  a  bar,  or  admissible  in 
evidence,  in  a  suit  brought  by  the  father  in  his  own  name  for  services  rendered 
and  expenses  incurred  in  the  care  of  the  wounds  inflicted  upon  the  child." 


377  PARENT   AXD    CHILD.  §  318 

father  toward  his  ofEspring.  As  has  been  seen,  the  services  of 
the  child  during  minority,  in  such  employment  as  he  may  be 
able  to  engage  in,  consistent  with  proper  educational  demands 
upon  his  time,  are  to  be  given  to  the  parent,  and  generally  it 
may  be  said  that  upon  children  the  law  enjoins  obedience  and 
assistance  to  their  parents  during  minority,  and  gratitude  and 
reverence  during  the  rest  of  their  lives. 

The  obligation  of  a  child  to  support  its  parent  in  old  age  or 
infirmity  is  almost  entirely  a  moral  one ;  and  as  such,  there 
being  no  pre-existing  legal  liability,  it  cannot  legally  be  en- 
forced, except  in  the  few  States  whose  statutes  supply  the  de- 
fect of  the  common  law  to  oblige  the  child,  when  of  age,  and 
able  so  to  do,  to  support  its  parent,  when  the  latter,  from  pov- 
erty, age,  or  infirmity,  cannot  procure  the  means  of  a  liveli- 
hood.i 

§  318.  Transactions  between  parent  and  child,  as  to 
strangers. — Transactions  of  parent  and  child  in  business,  where- 
in third  parties  are  interested,  may  raise  questions  of  interest  from 
the  peculiar  relations  existent  between  them. 

Thus,  in  a  recent  case,  tlie  proposition  was  stated,  and  urged 

1  2  Kent's  Com.  Sec.  208.  "The  laws  of  Xew  York  have,  in  some  small  de- 
gree, taken  caro  to  enforce  this  duty,  not  only  by  leaving  it  in  the  power  of  the 
parent,  in  hLs  discretion,  totally  to  disinherit,  by  will,  his  ungrateful  children, 
but  by  compelling  the  children  (being  of  sufficient  ability)  of  poor,  old,  lame,  or 
impotent  persons  (not  able  to  maintain  themselves)  to  relieve  and  maintain 
them.  This  is  the  only  legal  provision  made — for  the  common  law  makes  none 
— to  enforce  a  plain  obligation  of  the  law  of  nature."  (Edwards  v.  Davis,  16 
Johns.  281;  Hex  v.  jMunden,  Str.  190.) 

In  Massachusetts,  the  statutory  provision  is  vei-y  broad :  "  The  kindred  of  any 
such  poor  person,  if  he  have  any  in  the  line  or  degree  of  father  or  grandfather, 
mother  or  graudmoiher,  children  or  grandchildren,  by  consanguinity,  living 
within  this  State,  and  of  sufficient  ability,  shall  be  bound  to  support  such  pau- 
per in  proportion  to  their  respective  ability."  (Rev.  Stat.  Mass.  Chap.  46,  Sec.  5.) 
But  such  proceedings  as  are  prescribed  by  the  statute  must  be  had,  and  strict 
compliance  with  the  law  shown,  as  it  is  in  derogation  of  the  common  law,  at 
which  a  son  is  not  liable  for  the  support  of  an  infirm  and  indigent  parent.  (1 
Parsons  on  Contracts,  Sec.  312;  Edwards  and  Wife  v.  Davis,  16  Johns.  281.) 
"There  is  no  common-law  obligation  by  which  a  child  is  liable  to  support  an 
indigent  parent;  but  the  liability  of  the  child  is  created  solely  by  statute,  and 
therefore  the  law  does  not  imply  a  promise  from  the  child  to  pay  for.  necessaries 
furnished  without  his  request  to  an  indigent  parent,  and  the  natural  obligation 
can  only  be  enforced  in  the  mode  pointed  out  by  the  act  for  the  relief  and  settle- 
ment of  the  poor."    But  see  Succession  of  Lyons,  22  La.  An.  627. 


§  318  PARENT   AND    CHILD.  378 

with  great  ability,  that  a  father,  being  intrusted  with  the  sale  of 
property,  cannot  sell  it  to  his  son. 

That  an  agent  cannot  become  the  purchaser  of  property 
which  has  been  placed  with  him  for  sale  results  from  the  pecu- 
liar trust  reposed  in  him,  and  the  antagonism  to  that  trust  which 
may  be  assumed  from  his  being,  in  personal  interest,  adverse  to 
the  duty  to  obtain  the  highest  price  to  be  got  for  the  property. 

This  restriction  can  only  be  removed  by  the  agent  fully  in- 
forming his  principal  of  all  the  facts,  giving  his  opinion  truth- 
fully and  with  candor  as  to  value  and  price  obtainable,  and  so 
openly  acting  in  the  premises  as  to  rebut  the  presumption  that 
the  principal  relied  upon  any  thing,  or  information,  other  than 
such  as  both  parties  had  in  common  and  alike. 

But  if  the  agent  become  in  any  Avay,  directly  or  indirectly,  the 
purchaser,  without  such  a  change  of  the  general  relation,  he 
becomes  a  trustee  for  the  principal,  and  will  be  deemed  to  hold 
the  property  in  trust  for  him,  and  may  also  be  held  responsible 
in  damages. 

Without  such  entire  candor,  fraud  in  the  purchase  will  be 
presumed ;  it  will  not  be  necessary  to  show  it  affirmatively,  and 
the  fact  that  the  agent  paid  a  fair  price  is  unimportant ;  from 
such  a  purchase  the  law  implies  fraud.^ 

This  restriction  extends  not  only  to  the  agent  himself,  but  to 
his  clerks  and  employees  ;  the  rule,  as  laid  down  by  the  stand- 
ard authorities,  is  that  the  disability  extends  to  all  persons  who, 
being  employed  or  concerned  in  the  affairs  of  another,  acquired 
a  knowledge  of  his  property.  It  would  work  an  entire  abroga- 
tion of  the  rule  to  hold  the  principal  subject  to  its  operation, 
and  exempt  his  clerks  and  agents  from  its  effect,  by  opening  the 
door  to  its  evasion  and  destroying  its  vitality  and  virtue.^ 

1  Davoue  v.  Fanning,  2  J.  Ch.  260;  Claflin  v.  F.  &  C.  Bk.  25  K  Y.  293;  Case 
V.  Carroll,  35  Ibid,  388;  Conkey  v.  Bond,  36  Ibid,  429.  "An  agent,  under  a  gen- 
eral authority  to  purchase,  cannot  buy  from  himself,  without  the  knowledge  or 
consent  of  his  princii^al.  Such  a  transaction  is  a  breach  of  duty,  and  the  con- 
tract is  subject  to  rescission,  irrespective  of  any  question  of  intentional  fraud,  or 
actual  injury." 

-Ex  parte  Barnett,  7  Jurist,  116;  Owen  v.  Foulkes,  6  Ves.  6o0)i.b;  Ex  parte 
James,  8  Ibid,  337;  Ex  parte  Linwood,  8  Ibid,  343. 

Gardner  v.  Ogden,  22  N.  Y.  327.  "The  clerk  of  a  broker,  employed  to  make 
sale  of  land,  who  has  access  to  the  correspondence  between  his  i^rincipal  and 
the  vendor,  stands  in  such  relation  of  contidence  to  the  latter  that,  if  he  be- 


879  PARENT   AXD    CHILD.  §  318 

A  father,  where  acting  as  an  agent  for  the  sale  of  property, 
may,  however,  sell  to  his  son,  although,  from  the  relationship 
and  intimacy  of  the  parties,  imputations  of  fraud  are  liable  to 
be  made.  But  if  the  fact  appears  that,  from  his  relation,  the 
son  acquired  from  his  father  such  information  as  he  alone  could 
impart,  by  committing  a  fraud  on  the  principal,  or  if  it  appear 
that,  by  access  to  papers  in  the  father's  possession,  or  any  other 
means,  the  son,  through  such  relationship,  became  aware  of 
facts  which  induced  the  purchase,  there  appears  to  be  no  good 
reason  why  the  rule  affecting  clerks  and  employees  would  not 
apply,  and  the  circumstance  that  a  son  buys  property  of  a  father, 
who  is,  as  to  it,  the  broker  for  another  person,  would  be  one 
naturally  pointing  suspicion,  and  may  be  regarded  upon  allega- 
tions of  fraud  by  the  broker  in  making  the  sale. 

The  rule  does  not  appear  to  be  so  well  settled  as  is  to  be  de- 
sired, but  the  latest  case  goes  to  the  length  of  deciding  that  the 
relationship  of  a  father  to  his  son  will  not,  of  itself,  invalidate 
a  sale  made  by  the  father  to  the  son,  without  proof  of  fraud. 
As  before  seen  in  the  case  of  a  clerk  or  employee  of  the  agent, 
a  sale  made  to  him  is  presumed  to  be  fraudulent,  or  perhaps, 
more  strictly  speaking,  the  rule  is  as  with  respect  to  a  trustee 
dealing  with  the  property  of  the  principal,  fraud  is  not  a  neces- 
sary ingredient  in  testing  the  validity  of  the  transaction ;  ^  but 
the  general  reasoning  appears  to  warrant  the  distinction  made, 
and  it  is  but  reasonable  to  consider  that  the  son  may  be  held  to 
buy  upon  his  own  judgment  and  information,  not  obtained  through 
the  relationship ;  while  as  to  the  clerk  employed  in  the  agent's 
affairs,  the  presumption  would  be  that  he  was  aware  of  the  ad- 
vantages of  the  purpose,  through  his  employment  about  the  af- 
fairs of  the  vendor.^ 

comes  the  purchaser,  he  is  chargeable,  as  trustee,  for  the  vendor,  and  must  re- 
convey  or  account  for  the  value  of  the  land." 

In  this  case,  the  clerk  was  compelled  to  reconvey  so  much  of  the  land  as  re- 
mained in  his  hands,  and  to  account  for  the  proceeds  of  what  he  had  sold,  al- 
though the  price  paid  by  him  was  fair  and  adequate,  and  the  broker  was  exon- 
erated from  fraud  in  the  sale. 

1  Boerum  v.  Schenck,  41  jST.  Y.  182;  1  Story's  Eq.  322;  Coal  Co.  v.  Sherman,  SO 

Barb.  553. 

-  Lino-ke  v.  Wilkinson,  57  N.  Y.  445.  "The  relationship  of  father  and  son  will 
not,  of  Itself,  invalidate  a  lease  by  the  former,  as  agent  or  trustee,  to  the  latter, 
or  authorize  the  disaffirmance  of  the  transaction  by  the  principal  or  cestui  que 


§  318  PARENT    AND    CHILD.  380 

tmst.  The  fact  of  the  relationship  is  a  material  one  in  determining  whether 
there  was  fraud  in  fact  in  the  transaction,  but  it  does  not,  per  se,  constitute 
fraud  in  law,  or  bring  the  case  within  tlie  riile  prohibiting  an  agent  or  trustee 
from  dealing  with  the  subject-matter  of  the  agency  or  trust  for  his  own  benefit." 
The  opinion  of  the  Court  is  not  unanimous  on  the  point,  two  of  the  five  com- 
missioners dissenting,  and,  by  elaborate  opinions,  they  rank  the  son,  under 
such  circumstances,  with  clerks  in  the  agent's  office,  and,  in  the  opinion  of  one 
commissioner,  (Reynolds,  57  N.  Y.  455)  he  holds  that  the  case  does  not  differ 
materially  from  that  of  Gardners.  Ogden,  Supra*,  in  which  the  clerk  bought,  and 
that  fact  alone  was  held  sufficient  to  invalidate  the  sale. 


381  GUARDIAN   AND    WARD.  §§  319-20 


CHAPTER  XXVin. 

GUARDIAN  AND  WARD. 

§  319.  The  relation  of  guardian  and  ward. 

§  320.  General  duty  of  guardian. 

§  321.  Jurisdiction  of  Courts  of  Chancery. 

§  322.  The  guardian  represents  the  Court,  when. 

§  323.  The  guardian  must  take  no  chances  with  ward's  property. 

§  324.  Neglect,  by  guardian,  to  invest  trust  funds. 

§  319.  The  relation  of  guardian  and  ward  closely  re- 
sembles that  of  parent  and  child.  Inasmuch  as  children,  durlno- 
their  minority,  are  incapacitated  legally  to  transact  business, 
make  contracts,  and  otherwise  guard  their  interests,  it  is  neces- 
sary that  some  adult  should  be  charged  with  the  care  of  their 
persons  and  estates. 

Guardianship  usually  takes  place  upon  the  death  of  the 
father,  but  it  may  exist  during  the  lifetime  of  the  parents,  upon 
their  becoming  unable  to  care  for  their  children,  by  reason  of 
insanity,  or,  without  any  incapacity  on  the  part  of  the  parent, 
when  the  child  has  property  which  requires  care  or  attention.^ 

§  320.  General  duty  of  guardian.  —  The  relation  of  guar- 
dian and  ward  differs  from  that  of  parent  and  child  in  that  it  is 
not  one  of  natural  occurrence,  and,  being  the  creature  of  law, 
is  governed  more  strictly  by  legal  rules.  The  trust  assumed  by 
the  guardian  is  a  voluntary  one  on  his  part,  is  one  of  the  most 
imj)ortant  and  delicate  known  to  the  law,  is  large  and  compre- 
hensive in  its  efficiency,  and  the  Courts  are  extremely  watchful 
to   prevent  any   abuse   of   circumstances    by  advantage  being 

1  2  Kent's  Com.  218.  "The  relation  of  guardian  and  ward  is  nearly  allied  to 
that  of  parent  and  child.  It  applies  to  children  during  their  minority,  and  may 
exist  during  the  lives  of  the  parents  if  the  infant  becomes  vested  with  property ; 
but  it  usually  takes  place  on  the  death  of  the  father,  and  the  guardian  is  in- 
tended to  supply  his  place." 


§  321  GUARDIAN   AND    WARD.  382 

taken  by  the  guardian,  to  his  ovrn  profit,  at  the  expense  of  the 
ward,  or  of  his  estate.^ 

§  321.  The  jurisdiction  of  the  Courts  of  Chancery  over 
the  persons  and  property  of  infants  is  established  by  precedent 
so  ancient  as  to  be  obscure  as  to  its  origin,  but  the  doctrine  now 
commonly  maintained  is  that  the  general  care  and  superintend- 
ence of  the  persons  and  property  of  infants  vested  in  the  crown, 
^9,  jparens  imtrice ;  and,  as  the  exercise  of  this  prerogative  par- 
took more  of  the  nature  of  a  judicial  administration  of  rights 
and  duties  in  foro  conscientice  than  of  a  strict  executive  author- 
ity,  it  would  naturally  follow,  ea  ratione,  that  it  should  be  ex- 
ercised in  the  Court  of  Chancery  as  a  branch  of  the  general 
jurisdiction  originally  confided  to  it. 

The  jurisdiction  of  the  Court  of  Chancery  extends  to  the 
care  of  the  person  of  the  infant,  so  far  as  is  necessary  for  his 
protection  and  education,  and  to  the  care  of  the  property  of 
the  infant,  for  its  due  management  and  preservation,  and  the 
proper  application  of  it  to  his  maintenance  and  education,^ 

In  the  statute  laws  of  some  of  the  United  States,  provision 
is  made  for  the  exercise  of  this  jurisdiction  over  the  estates  and 
persons  of  minors  by  Courts  specially  designated  for  that  and 
other  similar  purposes.  This  is  done,  generally,  for  convenience, 
and  the  more  perfect  application  of  the  rules  and  principles  of 

1  Parsons  on  Contracts,  Sec.  137.  "  The  guardian  is  held,  in  this  country,  to 
have  only  a  naked  authority,  not  coupled  with  an  interest.  His  possession  of 
the  property  of  his  ward  is  not  such  as  gives  him  a  i^ersonal  interest,  being  only 
for  the  purposes  of  the  agency;  but,  for  the  benefit  of  his  ward,  he  has  a  very 
general  jjower  over  it.  He  manages  and  disposes  of  the  j^ersonal  property  at 
his  own  discretion,  although,  as  we  have  already  intimated,  it  is  safer  for  him 
to  obtain  the  authority  of  the  Court  for  any  important  measure.  He  may  lease 
the  real  estate,  (the  lease  not  to  continue  beyond  the  ward's  majority)  if  ap- 
pointed by  will  or  by  the  Court,  but  the  guardian  by  nature  cannot.  He  can- 
not, however,  sell  it  without  the  leave  of  the  proper  Court." 

2  3  Black.  Com.  427;  Williamson  v.  Berry,  8  Howard,  (U.  S.)  425;  McCord  v. 
O'Chiltree,  8  Blackf.  15;  Maguire  v.  Maguire,  7  Dana,  181;  Lyne  u.  Countess  of 
Shaftsbury,  2  P.  Wms.  118,  119;  Cary  v.  Bertie,  2  Vcrn.  333,  342;  Story's  Eq.  Jur. 
Vol  2,  Sec.  1327  et  seq. ;  Ibid,  Sec.  1338.  "The  Court  of  Chancery  will  appoint  a 
suitable  guardian  to  an  infant,  where  there  is  none  other,  or  none  other  who 
will  or  can  act,  at  least  where  the  infant  has  property ;  for  if  the  infant  has  no 
property,  the  Court  will,  perhaps,  not  interfere.  It  is  not,  however,  from  any 
want  of  jurisdiction  that  it  will  not  interfere  in  such  a  case,  but  from  the 
want  of  means  to  exercise  its  jurisdiction  with  effect ;  because  the  Court  cannot 
take  upon  itself  the  maintenance  of  all  the  children  in  the  kingdom." 


383  GUARDIAN    AND    WARD.  §  322 

equity  jurisprudence  and  practice,  by  a  subdivision  of  the 
duties  of  the  Courts,  and  specifically  assigning  to  the  special 
Court  the  labor  which  can  better  be  done  by  it  than  by  a 
Court  of  general  chancery  jurisdiction  ;  but  this  assignment  of 
duties  does  not,  as  a  rule,  oust  the  jurisdiction  of  the  general 
Chancery  Courts,  but  their  aid  may  be  invoked  whenever  there 
are  peculiar  circumstances  of  embarrassment  which  are  liable  to 
render  inefficient  the  Court  of  limited  jurisdiction. ^ 

§  322.    The   guardian   represents   the    Court,  when. — 

Courts  of  Chancery,  or  special  Courts  for  such  purpose  cre- 
ated, have  the  general  control  and  care  of  the  persons  and 
property  of  children  whose  misfortune  it  has  been  to  lose  their 
natural  protectors,  the  parents.  It  is  the  province  of  such 
Courts  to  inform  themselves  of  the  details  and  circumstances  of 
the  lives  and  estates  of  such  children  who  are,  in  legal  parlance, 
the  "wards"  of  the  Court.  In  the  management,  and  especially 
in  the  sale,  of  property  belonging  to  such  wards,  it  is  the  duty 
of  the  Court  having  the  matter  in  charge  to  surround  the  infant 
with  all  known  safeguards  and  means  of  prevention  to  imposi- 
tion upon  them,  or  jeopardy  to  their  interests. 

From  the  nature  of  this  duty  it  is  impossible  that  it  can,  as  a 
general  rule,  be  performed  by  the  Court  directly,  and  to  carry 
into  effect  the  desires  of  the  Court  in  the  premises,  guardians 
are  appointed,  who  are  the  creatures  of  the  Court,  to  carry  into 
effect  its  plans  and  intentions. 

As  to  the  property  of  the  infant,  the  Court  ascertains  its 
character  and  value  by  sworn  statements,  examination  of  wit- 
nesses, and  such  proceedings  of  a  similar  nature  as  may  be 
requisite  to  ascertain  the  facts  ;  and  by  inventories  and  aj^praise- 
ments  by  competent  and  disinterested  parties,  records  are  made, 
and  kept  by  the  Court,  of  whatever  property  goes  into  the 
guardian's  hands.  It  is  the  duty  of  the  Court,  as  the  primary 
guardian  of  the  infant,  to  maintain  a  constant  and  watchful 
supervision  over  the  property,  to  order  leases  and  sales  of  it 

1  Brown  v.  Snell,  57  X.  Y.  28G.  "A  special  guardian  of  an  infant,  appointed  in 
proceedings  for  tlie  sale  of  the  real  estate  of  the  latter,  owes  a  duty  of  absolute 
loyalty  to  the  interests  of  the  infant,  so  far  as  relates  to  the  proceeds  of  the 
real  estate  that  comes  to  his  hands ;  he  cannot,  of  right,  when  cited  to  account, 
hold  the  position  of  an  opposing  party." 


§  323  GUARDIAN   AND    WARD.  384 

when  requisite,  apply  proceeds  to  the  benefit  of  the  ward,  and 
see  that  all  funds  are  promptly  invested  in  such  manner  as  to 
be  secure  and  beneficial  to  the  child. 

The  guardian  is  directly  responsible,  and  always  answerable 
to  the  Court,  for  his  administration  of  the  business  intrusted  to 
him,  and — in  addition  to  his  personal  responsibility — is,  for  the 
safety  of  the  ward,  required  to  give  bond,  with  such  sureties  as 
the  Court  may  direct,  conditioned  for  the  faithful  performance 
of  the  trust  reposed,  for  the  paying  over,  investing,  and  ac- 
counting for  all  moneys,  and  for  the  observance  of  the  orders 
and  directions  of  the  Court  in  relation  to  the  trust.^ 

§  323.  The  guardian  not  justified  in  taking  risks. — To 
secure  the  proper  execution  of  the  trust  which  the  guardian 
assumes  over  the  person  and  estate  of  his  ward,  the  law  has 
been  exceedingly  watchful ;  the  guardian  is  held  to  the  most 
strictly  honest  discharge  of  his  duty ;  he  can  take  no  risks  with 
the  property  of  his  ward,  and  he  cannot  act  in  the  matter  of 
the  affairs  intrusted  to  him  with  any  reference  to  his  own  profit 
or  advancement,  or  even  for  his  own  protection  from  loss,  Avith- 
out  due  consideration  of  the  interests  of  the  ward  being  first 
had  in  the  premises.  He  must  not  only  neither  make  nor  suffer 
any  waste  of  the  inheritance,  but  must  render  rigid  account  of  his 
expenditures,  and  of  the  disposition  of  the  personal  estate  of  the 
ward.  Of  the  money  belonging  to  the  estate,  he  must  make 
such  use  as  a  jjrudent  man  would  ordinarily  do  of  his  own 
funds ;  must  not  loan  them,  or  make  investments  recklessly  ;  and 
if  he  act  with  the  funds  in  any  way  without  the  leave  of  the 
Court,  or  upon  insufficient  security,  he  is  liable  for  losses  which 
occur  by  reason  of  his  doing  so. 

These  general  rules  apply,  not  only  while  the  appointment  of 
guardian  lasts,  but  even  after  it  has  ceased,  by  the  majority  of 
the  ward  or  otherwise,  for  a  reasonable  length  of  time.  The 
law  is  jealous  of  the  rights  of  the  ward,  and  as  the  guardian 
may  have  acquired  such  special  information  as  to  the  business 
that  he  has  an  unfair  advantage,  or  his  influence  over  the  ward 
may  not  have  ended,  and  the  guardian  is  precluded  from  deal- 
ing with  the  ward,  or  his  estate,  until  the  relation  has  ceased 

1  Field  V.  Mayor,  Etc.  fi  N.  Y.  179;  Kelly  v.  Thayer,  34  How.  164. 


385  GUARDIAN    AND    WARD.  §  324 

for  such  length  of  time  as  to  establish  an  equality  between  the 
parties  as  to  the  subject-matter  of  the  trust.^ 

§  324.   Neglect   by  guardian   to   invest   trust   funds. — 

Any  negligence  on  the  part  of  the  guardian  to  properly  use  the 
property  of  the  ward,  or  any  misappropriation  of  the  assets 
received  by  the  guardian  under  the  trust,  entitle  the  ward  to  an 
action  against  him,  either  immediately  by  pTocliier  ami^  or  after 
the  ward  reaches  his  majority.  So,  if  the  guardian  uses  the 
money  of  the  ward  upon  his  own  ventures,  or  invests  it  in  trade, 
the  ward  may  elect  either  to  treat  the  transaction  as  his  own, 
claim  the  benefit  of  the  investment,  or  the  profits  of  the  trade, 
or  the  principal  wath  compound  interest,  in  lieu  of  the  profits,  if 
the  guardian  will  not  disclose  what  the  profits  have  been. 

And  if  the  guardian  neglects  to  put  out  at  interest  the  ward's 
money,  and  for  an  unreasonable  length  of  time  allows  it  to  lie 
idle,  or  mingles  it  with  his  own,  he  will  be  charged  with  inter- 
est, and  in  cases  of  gross  negligence  the  Court  will  impose  upon 
him  the  payment  of  compound  interest.     It  is  not  enough  for 

1  2  Kent's  Com.  225;  Hassard  v.  Rowe,  11  Barb.  24;  Torrey  v.  Black,  G5  Barb. 
(N.  Y.)  417.  The  administrator  of  the  deceased  father's  estate  cut  timber  from 
the  land  by  consent  of  the  widow,  who  was  tlie  son's  guardian;  the  son,  as  heir 
of  his  father  to  the  land,  attaining  majority,  sued  the  administrator  for  the  value 
of  the  wood;  the  administrator,  in  defense,  jileaded  the  jiermission  given  by 
the  guardian.  Held,  that  the  guardian  could  give  no  such  license,  and  the  gen- 
eral rule  was  declared,  that  a  guardian  can  do  nothing  to  iDrejudice  the  rights 
of  the  ward.    (Jackson  v.  Sears,  10  Johns.  435-441.) 

Cureton  v.  Watson,  3  S.  C.  (New  Series,  1872)  451.  A  guardian,  in  18G1,  sold 
his  ward's  mortgage,  and  took  in  payment  a  promissory  note,  which  was  jiaid  in 
1863,  in  Confederate  money.  Pleld,  that  the  guardian  was  liable  to  the  ward 
for  the  amount  of  the  mortgage. 

But  in  State  v.  Morrison,  C8  N.  C.  1G2,  a  guardian  in  good  faith  sold,  on  a  credit 
of  twenty  days,  the  cotton  of  his  wards,  taking  from  the  buyer  his  note  without 
security.  At  the  time  of  the  sale  the  buyer  was  solvent,  and  owned  real  estate, 
but  before  the  note  was  collected  became  insolvent,  and  unable  to  pay  the 
note.  Held,  that  he  was  not  liable  to  his  wards  for  the  iirice  of  the  cotton. 
(And  to  same  general  effect,  see  State  v.  JMorrison,  G8  N.  C.  1G2. ) 

2  Kent's  Com.  229.  "The  guardian's  trust  is  one  of  obligation  and  duty,  not 
of  speculation  and  profit.  Ho  cannot  reap  any  benefit  from  the  use  of  the 
ward's  money.  He  cannot  act  for  any  benefit  in  any  contract,  or  purchase,  or 
sale,  as  to  the  subject  of  the  trust.  If  he  settles  a  debt  upon  beneficial  terms, 
or  purchases  it  at  a  discount,  the  advantage  is  to  accrue  entirely  to  the  infant's 
benefit." 

But  in  a  late  case  it  was  held,  that  a  guardian  who  is  a  merchant  may,  if  he 
acts  in  good  faith,  supply  the  necessary  wants  of  his  wards  from  his  own  store, 
and  may  charge  a  reasonable  profit  on  them.     (Moore  v.  Shields,  G9  N.  C.  50.) 

Farm— 25. 


§  324  GUARDIAN    AND    WARD.  386 

the  guardian  to  show  that  he  has  safely  kept  the  money  and  is 
ready  to  turn  it  over  ;  his  position  is  not  unlike  that  of  him  who, 
in  the  parable,  was  intrusted  with  money  by  his  Lord :  it  is  not 
enough  that  he  bury  it  in  a  napkin,  and  after  many  days  return  it 
as  it  was  intrusted  to  him,  without  increase.^ 

1  2  Kent's  Com.  231;  Docker  v.  Simes,  2  My.  &  K.  665. 

In  the  matter  of  Jackson,  1  Tucker,  Surr.  (N.  Y.)  71,  a  general  guardian  held 
liable  for  moneys  belonging  to  his  ward,  of  which  the  guardian  had  been  robbed. 
It  is  his  duty  to  i^rosecute  for  its  recovery. 

Owen  V.  Peebles,  42  Ala.  341.  A  guardian  is  responsible  for  interest  if  he 
keejDS  the  ward's  funds  iinemployed  when  they  could  have  been  safely  invested. 
It  is  his  duty  to  make  investments  if  it  can  be  safely  done  by  the  exercise 
of  due  diligence.  This  is  the  law,  independently  of  the  statute.  He  cannot, 
therefore,  be  relieved  from  interest  by  a  mere  showing  that  the  funds  have  not 
been  used.     (Bryan  v.  Craig,  12  Ala.  354;  Allen  v.  Martin,  36  Ala.  330.) 

But  a  guardian  is  not  chargeable  with  compound  interest  on  money  on  hand 
where  he  has  been  guilty  of  no  misconduct.  Nor  should  he  be  charged  even 
with  simple  interest  if  he  proves  that  he  could  not,  by  the  exercise  of  reasonable 
diligence,  make  a  proper  investment ;  unless  there  was  a  conversion  by  him  of 
the  money.    (Brand  v.  Abbotts,  42  Ala.  499.) 


-387  APPRENTICE   AIS^D   MASTER.  §§  325-6 


CHAPTER  XXIX. 

APPRENTICE  AND  jMASTER. 

§  325.  The  relation  of  master  and  apprentice. 

§  326.  The  father's  power  to  bind  his  son  apprentice. 

§  327.  Statutory  provisions  as  to  master  and  apprentice. 

§  328.  "Wlio  may  assent  to  binding  out  a  child. 

§  329.  The  contract  of  apprenticeship. 

§  330.  Persuading  apprentice  to  leave  his  master. 

§  325.  The  relation  of  master  and  apprentice  is  like  tliat 
of  guardian  and  ward,  and,  perhaps  to  a  greater  extent,  re- 
sembles that  of  parent  and  child.  For  the  purpose  of  the 
child's  being  educated  in  some  one  of  the  useful  arts,  trades, 
or  callings,  the  parent  delegates  his  authority  over  the  child  to 
some  person  who  is  engaged  in  the  avocation  Avhich  the  parent 
desires  his  child  to  become  learned  or  skillful  in,  and  the  jierson 
to  Avhom  the  parent  relinquishes  his  control  of  the  child  natu- 
rally becomes,  to  a  considerable  extent,  in  loco  parentis.^ 

§  326.  The  father's  power  to  bind  his  son  as  appren- 
tice.— At  common  law,  a  father,  who  is  entitled  to  the  services 
of  his  minor  son,  and  for  whom  he  is  obliged  to  provide,  may 
assign  those  services  to  others,  for  a  consideration,  to  inure  to 
himself.  He  may  contract  that  his  minor  son  shall  labor  in  the 
service  and  employment  of  others  for  a  day,  a  month,  or  any 
longer  term,  so  that  the  time  does  not  exceed  the  period  of  the 
child's  emancipation  from  the  father,  which  may  take  place  as 
well  on  the  father's  death  as  on  the  son's  arriving  at  the  age  of 
twenty-one  years.^ 

1 1  Bouv.  Law  Die.  692. 

2  Day  V.  Everett,  7  Mass.  144.  "  At  common  law,  a  father  may  assign  the  serv- 
ices of  his  minor  son  to  another,  for  a  consideration,  to  inure  wholly  to  the  father, 
and  this  for  a  longer  or  shorter  term,  limited,  however,  by  the  son's  minority  and 
the  life  of  the  father."  But  the  later  English  cases  confine  this  right  to  dispose 
of  the  child's  services  to  such  cases  as  those  in  which  the  assent  of  the  child  has 


§  327  APPRENTICE   AND   MASTER.  388 

§  327.  Statutory  provisions  as  to  master  and  appren- 
tice.— The  statutory  enactments  of  the  United  States  bear,  each 
to  the  other,  a  general  resemblance,  and  are,  as  a  rule,  sub- 
stantially the  same,  the  application  differing  only  to  correspond 
to  the  requirements  of  the  residents  in  the  different  parts  of 
the  country  ;  the  general  provisions  ai'e,  that  infants,  if  males, 
under  twenty-one,  and  females,  if  unmarried,  under  eighteen, 
may  be  bound  by  indenture,  of  their  own  free  will,  and  by  their 
own  act,  to  a  term  of  service,  as  apprentice  in  any  tirade, 
profession,  or  employment,  having  first  in  due  form  procured 
the  consent  of  the  father,  mother,  guardian,  or  other  person  oi 
persons  vfho  are  hiAvfully  charged  with  their  care  and  main- 
tenance.^ 

been  obtained  to  the  arrangement,  and  do  not  permit  the  father  to  deal  with  the 
child  as  a  chattel,  or  dispose  of  his  services  without  consulting  his  wishes.  (The 
King  V.  Inhabitants  of  Cromford,  8  East,  25.)  '"Where  the  master  and  father 
of  a  boy  agreed,  under  seal,  that  the  master  should  teach  the  sou  the  art  and 
mystery  of  weaving,  for  live  years,  and  find  utensils,  and  the  son  should  receive 
half  his  earnings,  and  the  master  the  other  half,  under  which  the  boy  served  out 
the  time  as  an  apprentice,  held,  that  this  agreement  between  the  father  and  mas- 
ter (to  which  the  son  was  no  party)  not  binding  the  son,  or  the  father  for  him,  to 
any  service  to  the  master;  but  the  son's  service,  being,  in  fact,  merely  volun- 
tary, was  no  apprenticeship  in  point  of  law,  and  consequently  no  settlement 
could  be  gained  by  the  son  serving  his  master  under  such  a  contract."  (The 
King  V.  Inhabitants  of  Arnesby,  3  B.  &  Aid.  584;  Ford  v.  McVay,  55  111.  110.) 

^2  Kent's  Com.  263  et  seq. ;  2  Parsons  on  Contracts,  50.  In  Arkansas,  the  ap- 
proval of  the  Probate  Court  is  necessary  to  the  validity  of  an  indenture  of 
apprenticeship  of  a  child  by  his  father. 

In  Delaware,  it  has  been  held  that  an  indenture  Avhich  is  not  authorized  by 
the  statute  is  voidable  only,  not  void.     (Luby  v.  Cox,  2  Harr.  184.) 

An  indenture  of  apprenticeship  executed  by  a  minor  to  be  binding  on  him 
must  be  sanctioned  by  his  parent  or  guardian.  But  if  such  contract  has  been 
fairly  executed  and  is  apparently  advantageous  to  the  minor,  he  cannot,  after  a 
partial  performance,  rescind  the  contract,  and  recover  for  the  value  of  his  serv- 
ices (Harney  v.  Owen,  4  Blackf.  337;  Page  v.  ]\Iarsh,  36  N.  H.  305)  ;  but  being 
voidable,  it  will  be  avoided  by  any  act  which  shows  clearly  his  intention  not  to 
be  bound  by  it.     (Brown  v.  "Whittemore,  44  N.  H.  369.) 

But  an  indenture  signed  by  the  parent  only,  and  not  by  the  child,  held  to  be 
void.    (Ivins  v.  Noi-cross,  3  New  Jersey  L.  169. ) 

So  in  New  York,  in  the  leading  case  of  Matter  of  McDowle,  8  Johns.  328,  the 
rule  has  been  laid  down  that,  under  the  statutes  of  that  State,  when  a  father 
binds  his  child  apprentice  the  indentures  must  be  executed  by  the  child,  or  they 
will  not  bind  him,  although,  at  common  law,  a  parent  might  bind  his  infant  an 
apprentice.  The  later  English  cases  also  lean  to  the  reasoning  that  the  parent 
and  child  must  join  in  the  indentures.  But  the  father  may  be  bound  by  the 
covenants  in  the  indentures,  although  the  child  is  not.  The  want  of  the  execu- 
tion by  the  infant  is  a  defect  of  wliich  the  cliild  alone  can  avail  himself.  (Matter 
of  McDowle,  8  Johns.  328;  Guilderland  f.  Knox,  5  Cow.  303;  People  f.  Pillow,  1 


S89  APPREXTICE    AND    MASTER.  §§  328-9 

§  328.  Who  may  assent  to  binding  cut  a  child. — Tlie 
custody  of  the  child,  sufficient  to  warrant  an  assent  to  his  or 
her  becoming  bound  for  a  term  of  service  as  apprentice,  is  not 
confined  to  the  parents  or  guardians ;  the  overseers  of  the  poor, 
or  the  officers  of  the  village,  town,  or  city,  who  by  their  official 
position  and  duties  are  charged  with  the  care  and  maintenance 
of  paupers,  may  assent  lawfully  to  the  apprenticeship  of  minor 
children  who,  for  want  of  competent  natural  protectors,  are  a 
charge  upon  the  community.^ 

§  329.  The  contract  of  apprenticeship  is  generally  in 
writing,  and  the  current  of  authorities  is  to  the  effect  that  it 
must  be  so.  It  is  most  frequently  accompanied  by  all  the  for- 
malities of  a  deed,  and  is  to  be  construed  and  enforced,  as  to  all 
the  parties,  by  the  rules  of  law  governing  contracts.^ 

This  contract  is  that  tlie  apprentice  shall  serve  his  master 
faithfully  during  the  term,  and  the  master,  on  his  part,  cov- 
enants that  he  will  teach  the  apprentice  his  trade,  or  give  to 
him  such  opportunities  of  learning  the  art  or  profession  to 
which  the  master  is  devoted  as  will  enable  the  apprentice  to 
become  skilled  or  learned  therein. 

The  master  is  entitled  to  the  custody  of  the  apprentice,  and 
is  charged  with  his  care  and  maintenance,  and  he  is  therefore 
bound,  in  case  of  sickness,  to  provide  his  apprentice  with  proper 
medicine  and  attendance.^ 

Sandf.  711;  Commonwealtli  i\  Jennings,  1  Browne,  [Penn.]  197;  Doane  v.  Corel, 
5i3  Me.  527;  Commonwealth  t\  Atkinson,  8  Phil.  [Penn.]  375;  Fordw.  McYay, 
55  111.  119;  Hudson  v.  Warden,  .39  Vt.  382;  Van  Dorn  v.  Young,  IS  Barb.  28G.) 

1  It  would  seem  that  where  an  infant  is  bound  out  as  apprentice  by  the  over- 
seers of  the  poor,  as  he  may  be  where  he  is  the  child  of  paupers  having  a 
settlement  in  the  town,  the  assent  of  the  child  is  not  requisite.  (Commonwealth 
V.  Jones,  3  Serg.  &  R.  158;  2  Kent's  Com.  264;  Bowes  v.  Tibbetts,  7  Me.  457.) 

But  x^recedents  have  established  the  ijropriety,  if  not  absolute  necessity,  of 
the  child  in  person  being  heard  as  to  his  settlement  by  such  as  have  him  in 
charge  as  a  town  pauj^er,  and  he  should  not  be  so  bound  out  without  his  next 
friend,  or  person  with  whom  he  reside,  if  any  such  there  be,  having  been  sum- 
moned to  show  cause  why  the  child  should  not  be  so  disposed  of.  (Curry  v. 
Jenkins,  Hard.  [Ky.]  493;  Eachel  v.  Emerson,  6B.  Mo.  280;  Owens  v.  Chaplain, 
3  Jones'  [N.  C]  L.  323;  Case  of  Ambrose  Phill,  N.  C.  91.) 

2  Articles  of  apprenticeship  must  be  in  writing.  (Tague  v.  Hayward,  25  Ind. 
427;  Bolton  v.  Miller,  G  Ind.  262.) 

3  Hall  11.  Eowley,  2  Root,  (Conn.)  IGl.  "If  a  father  engages  by  parol  that  his 
son  shall  serve  another  for  a  longer  time  than  one  year,  the  contract  is  void  by 


§  330  APPRENTICE  AND  MASTER.  390 

From  this  relation  of  the  parties,  it  would  appear  that  the 
master  occupies  a  relation  to  his  apprentice  so  far  like  that  of 
parent  to  child  that  he  may  be  permitted  to  enforce  his  author- 
ity, and  compel  compliance  to  his  reasonable  commands,  by  mod- 
erate correction  for  negligence  or  misbehavior.^ 

§  330.  Persuading   apprentice  to   leave   his   master. — 

The  enticement  of  the  apprentice  from  the  service  of  his 
master  is  actionable,  and  not  only  a  party  who  seduces  an  ap- 
prentice from  his  service  is  liable,  but  any  person  who  employs 
an  apprentice,  even  though  he  have  no  knowledge  that  he 
occupies  that  relation  to  another,  must  answer  to  the  master  for 
the  value  of  the  services  rendered  by  the  apprentice.^  The 
mere  abandonment  of  service  by  the  apprentice  does  not  aroid 
the  apprenticeship  ;  nor  can  the  master  release  himself  from  his 
obligation  without  the  assent  of  the  parent  with  whom  he  has 

the  Statute  of  Frauds,  and  neither  party  can  maintain  an  action  for  breach 
thereof,  though  it  has  been  in  jjart  performed  on  both  sides."  (Squires  v.  Whip- 
ple, 1  Vt.  69 ;  Peters  v.  Lord,  18  Conn.  337 ;  Commonwealth  v.  Atkinson,  8  Phil. 
Penn.  375;  2  Kent's  Com.  2G4.)  "It  is  a  settled  principle  of  the  English  and 
American  law  that  the  relation  of  master  and  apprentice  cannot  be  created,  and 
the  corresponding  riglits  and  duties  of  the  parent  transferred  to  a  master,  ex- 
cept by  deed."  (Citing  Castor  v.  Aides,  1  Salk.  08;  King  v.  Inhabitants  of  Bow, 
4  Maule  &  S.  383;  Commonwealth  v.  AVilbanks,  10  Serg.  &  E.  416.)  Slight 
informalities,  however,  will  not  make  the  indenture  void.  Fowler  v.  Hollen- 
beck,  9  Barb,  in  which  the  indentures  did  not  disclose  any  trade,  calling,  or 
profession  in  which  the  minor  was  to  be  taught,  was  held  not  to  be  fatally  de- 
fective. So,  in  Maltby  t\  Harwood,  12  Barb.  473,  it  was  held  that,  even  if  tlie  in- 
dentures were  so  far  defective  as  to  vitiate  them  as  such,  they  might  be  suffi- 
cient to  prescribe  and  measure  the  claim  of  each  of  the  jiarties  against  the  other, 
if  they  have  lived  under  the  indentures  as  master  and  servant. 

2  Parsons  on  Contracts,  p.  50;  Maltby  v.  Harwood,  12  Barb.  473.  "The  master 
is  bound,  from  the  very  nature  of  the  relation  between  master  and  apjirentice, 
to  pay  for  medical  attendance  on  the  apprentice."  (Easley  r.  Craddock,  4  Rand. 
[Ya.]  423.)  But  not  where  the  master  did  not  call  in  the  iihysician,  or  the  at- 
tendance was  not  at  the  master's  house.  (Percival  v.  Nevill,  1  Nott  &  M.  452; 
Dunbar  r.  "Williams,  10  Johns.  249.) 

1  2  Kent's  Com.  265.  "  The  master  may  correct  his  apprentice,  with  modera- 
tion, for  negligence  or  misbehavior."     (Conmaonwealth  r.  Baird,  1  Ashm.  267.) 

2  Bardwell  v.  Purrington,  107  Mass.  427.  "  The  employment  by  a  jjerson  of 
an  absconding  apprentice,  and  the  fact  that  he  paid  him  for  his  services,  afford 
no  defense  to  an  action  against  such  person  by  the  master  for  the  value  of  such 
services."     (United  States  v.  Anderson,  Cooke,  Tenn.  143.) 

Where  an  apprentice  is  employed  by  a  third  person,  Avithout  the  knowledge 
or  consent  of  his  master,  the  master  is  entitled  to  all  his  earnings,  whether  the 
person  who  employed  him  did  or  did  not  know  that  he  was  an  apprentice. 
(McKay  v.  Bryson,  5  Ired.  L.  216.) 


391  APPEENTICE   AND   MASTER.  §  330 

contracted,  or  leave  of  the  Court,  or  overseers  of  the  poor  from 
whom  he  has  received  the  charge^ 

But  the  parent,  or  other  party  to  the  indenture,  who  appears 
and  acts  for  the  child,  and  assents  to  the  contract,  is  bound  in 
good  faith,  and  to  the  best  of  his  ability,  to  enforce  it,  and  to 
keep  the  apprentice  subject  to  the  master's  control.^ 

iCockranr.  State,  46  Ala.  714.  "The  covenants  that  an  apprentice  shall 
serve,  and  that  the  master  shall  teach  and  provide,  etc.,  are  independent;  so 
that  if  an  apprentice,  by  reason  of  incurable  illness,  becomes  unable  to  leam, 
etc.,  the  master  cannot  ijut  an  end  to  the  contract  by  his  own  authority." 
(Powers  V.  Ware,  2  Pick.  451;  Clancy  ?>.  Overman,  1  Dev.  &  B.  L.  402.)  But 
see  Barger  v.  Caldwell,  2  Dana,  131 ;  Wright  v.  Brown,  5  Md.  37,  in  which  it  was 
leld  that  if  the  apprentice  is  incapable  of  learning  the  trade,  the  obligation  of 
the  master  is  discharged. 

2VanDornw.  Young,  13  Barb.  28G.  "The  parties  to  a  contract  of  appren- 
ticeship), being  the  father  and  master,  bound  themselves  '  so  far  as  it  was  in  their 
power  to  see  the  contract  fulfilled.'  Held,  that  it  must  be  deemed  to  have  been 
the  intent  of  the  i^arties  to  limit  their  obligation  to  their  legal  liability.  And  in 
an  action  by  the  master  against  the  father  on  such  a  contract,  it  appeared  that 
the  son,  after  serving  several  years,  had  left  his  master  and  refused  to  serve 
under  him  any  longer.  Held,  that  the  defendant  was  bound  to  do  what  he  had 
the  legal  power  to  do  in  the  premises ;  and  it  appearing  that  he  had  refused  to 
do  anything  to  compel  or  induce  his  sou  to  return,  that  the  obligation  on  his 
part  was  broken."  (Bruce  r.  Mathews,  2  Bibb,  294;  Powers  v.  Ware,  4  Pick. 
106. )  But  an  apprentice  is  not  bound  to  remain  with  his  master  after  cruel  and 
inhuman  treatment,    (McEath  v.  Herndon,  2  T.  B.  Mon.  32.) 


§  331  RAISING    CROPS    OX    SHARES,  392 


CHAPTER  XXX. 

RAISING  CROPS  OX  SHARES. 

§  331.  Distinction  between  leasing  land  and  farming  on  shares. 

§  332.  Parties  to  crojiping  contract  tenants  in  common. 

§  333.  The  cropper  on  shares  not  a  laborer  for  hire. 

§  334.  Possession  of  growing  crop  under  husbandry  contract. 

§  3-35.  The  "cropper"  must  farm  in  a  "  husbandlike"  manner. 

§  336.  As  to  what  is  "proper  husbandry." 

§  337.  "When  "  cropping"  contract  becomes  an  ordinary  tenancy. 

§  338.  Agreement  to  pay  with  part  of  crop  makes  a  tenancy. 

§  339.  Intention  of  parties  characterizes  the  contract. 

§  3i0.  Cropping  on  shares  a  partnership,  ^^hen. 

§  331.  Distinction  between  leasing  land  and  farming 
on  shares, — The  relation  of  landlord  and  tenant  is  not  created 
by  a  contract  to  farm  land  and  raise  a  crop  on  shares ;  the 
owner  of  the  land  parts  with  no  estate  therein  ;  the  possession 
remains  in  him,  subject  to  a  qualified  right  of  entry  upon  it  by 
the  other  party  for  the  purposes  of  carrying  out  his  contract ; 
and  a  naked  right  of  entry  upon  land,  to  raise  a  crop  on  shares, 
the  owner  remaining  in  the  general  possession  of  the  farm,  does 
not  amount  to  a  lease  of  the  land.  So  far  does  this  interest  of  the 
''cropper"  fall  short  of  a  right  to  possession  that  as  soon  as  the 
crop  is  raised  and  harvested,  his  right  to  go  upon  the  premises 
terminates,  except  so  far  as  is  requisite  to  remove  his  share  of 
the  crop,  and  this  right  of  entry  ceases  with  the  removal  of  the 
crop,  and  is  severable  as  to  different  portions  of  the  field  ;  so 
that,  although  he  has  a  right  to  go  upon  such  part  of  the  land 
as  the  crop  is  not  harvested  or  divided  and  removed  from,  he  is 
a  trespasser  if  he  go  upon  that  portion  of  the  field  where  the 
crop  has  been  harvested,  divided,  and  his  share  removed  from.^ 

1  Creel  v.  Kirkham,  47  111.  .544 ;  TVamer  v.  Hoisington,  42  Yt.  &1 ;  4  Kent's  Com. 
Sec.  95.  "If  land  be  let  upon  shares  for  a  single  crop  only,  that  does  not 
amount  to  a  lease,  and  the  possession  remains  in  the  owner."  (Hare  v.  Celey, 
Cro.  Eliz.  14.3.) 

State  r.  JeweU,  .34  X.  J.  L.  259.  A  contract  between  the  owner  of  a  farm 
and  another  person,  that  the  latter  shall  cultivate  such  farm  on  shares,  or 


393  EAISIXG   CEOPS   ox   SHARES.  §  332 

§  332.  Parties  to  cropping  contract  tenants  in  com- 
mon.— The  parties  become  tenants  in  common  of  the  crop 
■while  it  is  growing ;  because  of  the  peculiar  character  of  prop- 
erty, the  extent  of  which  cannot  be  determined  until  the  crop 
is  severed  from  the  soil,  the  ownership  of  each  party  appears 
to  be  such  that,  at  any  time,  he  may  assign  his  interest  in  the 
crop,  as  he  might  sell  any  other  chattel,  and  it  may  be  seized 
on  legal  process  against  him  for  debt,  where  growing  crops  are 
not  exempt  from  seizure.^ 

manage  the  same  for  a  stipulated  salary,  and  be  allowed  the  use  of  a  dwelling- 
house,  furniture,  etc.,  is  not  a  lease,  and  such  an  arrangement  does  not  create 
the  relation  of  landlord  and  tenant  between  the  parties  thereto. 

In  Betom  r.  Mercier.  id  Ga.,  per  McCay,  J.,  it  was  held  "that  there  is  an 
obvious  distinction  between  a  cropper  and  a  tenant.  One  has  a  possession  of 
the  premises  exclusive  of  the  landlord,  the  other  has  not.  The  one  has  a  right 
for  a  fixed  time,  the  other  has  only  a  right  to  go  on  the  land  to  plant,  work,  and 
gather  the  crop.  The  possession  of  the  land  is  with  the  owner  as  against  the 
cropper.    This  is  not  so  of  the  tenant." 

"  The  defendant  entered  into  a  contract  with  '  A '  in  Avriting,  not  mider 
seal,  by  which  he  agreed  '  to  let '  to  A  a  certain  farm,  to  commence  on  the  1st 
of  April.  1842,  and  continue  from  year  to  year  for  the  term  of  five  years,  or  so 
long  as  the  parties  should  agree  and  be  satisfied,  reserving  to  either  party  the 
right  to  terminate  the  contract  by  giving  to  the  other  one  month's  notice  in 
writing ;  the  produce  of  the  farm  to  be  equally  divided  by  weight  or  measure 
between  the  parties.  Held,  that  although  this  gave  to  A  an  interest  in  the 
land,  and  a  right  to  occupy  it  without  molestation  from  the  defendant,  while  he 
continued  in  the  performance  of  the  contract,  yet  that  it  did  not  constitute  a 
lease  of  the  farm,  but  that  A  was  a  quasi-tenant  at  will,  while  the  contract  con- 
tinued in  force,  and  that  defendant  and  A  were  tenants  in  common  of  the 
growing  crops,  and  of  the  produce  of  the  farm  before  severance." 

Aiken  r.  Smith,  21  Vt.  172;  Smith  v.  Doty,  1  Yt.  37:  Foote  r.  Colvin,  3  Johns. 
216;  Bradish  r.  Scheuck,  8  Johns.  151;  Caswell  v.  Districh,  15  ^Vend.  379:  Putnam 
V.  Wise,  1  Hill,  234;  Walker  v.  Fitts,  24  Pick.  193.  Judge  Swift,  also,  in  his 
digest,  treats  the  owner  of  the  soil  and  the  occupier  under  a  cropping  contract 
as  occupying  to  each  other  and  the  lands  a  relation  differing  materially  from 
that  of  landlord  and  tenant.  (1  Swift's  Dig.  91-2;  Hobbs  v.  Wethorwax,  38 
How.  Pr.  385.) 

Delaney  v.  Boot,  99  Mass.  546.  "  By  an  oral  contract  between  A  and  B  for 
the  cultivation  of  B'sland,  each  was  to  furnish  one-half  of  the  seed  and  manure, 
B  to  do  the  team  work,  and  A  the  hand  work  and  harvesting  of  the  crop,  which 
they  were  to  divide  equally.  Each  furnished  his  share  of  material,  and  did  his 
share  of  the  work,  until  after  the  crop  began  to  grow,  when  B  refused  to  do 
more  work,  and  forbade  A  to  go  again  upon  the  land.  A,  nevertheless,  entered 
the  land  again  at  harvest  time,  and  cut  the  crop,  when  B  seized  and  con- 
smned  the  whole  of  it  against  A's  wUl,  no  division  of  it  having  been  made,  nor 
any  demanded  by  either  of  them.  Held,  that  they  were  tenants  in  common  of 
the  crop,  and  B  was  liable  in  tort  for  his  conversion  of  A's  share  of  it." 

1 4  Kent's  Com.  Sec.  95.  "The  occupant  is,  however,  a  tenant  in  common  with 
the  owner  of  the  growing  crop,  and  he  continues  so  until  the  tenancy  be  sev- 
ered by  a  division."' 


§  333  RAISING   CROPS    ON    SHARES.  394 

There  is,  therefore,  in  the  farmer  on  shares,  more  than  a  pos- 
sible or  contingent  interest  in  the  result  of  the  year's  crop ;  so 
soon  as  there  is,  under  the  contract,  any  property  whatever,  the 
parties  respectively  become  the  owners  of  it  to  the  extent  or 
portion  thereof  agreed  upon. 

The  property,  or  ownership,  is,  however,  peculiar  to  the  "cir- 
cumstances under  which  it  has  been  created,  and  does  not  fol- 
low the  general  rule  that  the  owner  may  do  what  he  likes  with 
his  property,  inasmuch  as  each  party  is  bound  to  act  with  ref- 
erence to  the  crop,  while  growing,  with  reference  to  the  in- 
terest of  the  other,  and  in  subserviency  to  the  contract. 

§  333.   The  cropper  on  shares  not  a  laborer  for  hire. — 

The  text-books,  and  many  of  the  decisions,  mention  the  owner 
of  the  land  as  the  owner  also  of  the  growing  crop,  and  appear 
to  regard  him  as  such,  notwithstanding  that,  in  terms,  each  is 
called  a  tenant  in  common  in  the  crop,  to  the  extent  of  his  in- 
terest ;  and,  from  the  general  tenor  of  standard  authorities,  it 
appears  to  result  that  the  "  cropper,"  or  farmer  on  shares,  in 
many  respects  resembles  a  laborer  for  hire,  his  remuneration 
being  a  portion  of  the  crop,  and  the  amount  of  his  wages  de- 
pendent upon  his  own  industry  and  good  'fortune,  and  the  suc- 
cess of  the  enterprise.^  On  the  other  hand,  very  late  decisions 
treat  him  not  as  a  laborer  for  hire  precisely,  but  place  him  in 
the  category  of  contractors,  with  whom  the  entire  control  of 
the  labor  rests,  and  not  a  servant  under  the  orders  of  a  master.^ 

Aiken  r.  Smith,  21  Vt.  172;  Guest  v.  Opclyke,  2  Vroom,  552.  "Tlie  occupier, 
by  virtue  of  an  agreement  of  this  kind,  becomes  simply  a  tenant  in  common 
with  the  other  contracting  party  of  the  growing  crops,  and  this  joint  interest 
continues  until  severed  by  a  division."     (State  v.  Jewell,  34  N.  J.  L.  260.) 

"  Corn  growing  is  a  chattel  interest,  and  may  be  sold  by  parol."  (Austin  v. 
La\vy er,  <J  Cow.  39 ;  Killmore  v.  Howelett,  48  N.  Y.  509. )  Fructus  industriales 
are  chattels,  even  before  severance  from  the  soil.  (Ibid;  Bryant  t).  Crosby,  40 
Me.  9;  Sherry  v.  Picken,  10  Ind.  375;  Bull  v.  Griswold,  19  111.  631.) 

14  Kent's  Com.  95;  Creel  v.  Kirkham,  47111.  344;  Appelling  v.  Odom,  46  Ga. 
585.  "The  case  of  the  cropper  is  rather  a  mode  of  paying  wages  than  atenant- 
cy."     (Doe  v.  Derry,  9  C.  &  P.  494;  The  King  v.  Stock,  2  Taunt.  340.) 

2  The  latest  case,  to  this  point,  is  that  of  Barron  v.  Collins,  (1873)  49  Ga.  581. 
Tlie  action  is  for  damages  in  enticing  away  servants;  the  ojiinion,  by  McCay, 
J.,  gives  this  view  of  the  law  tersely  and  with  force.  "The  contract  set  out  is 
not  a  contract  of  service.  It  does  not  appear  that  the  labor  of  Charles  BaiTon's 
two  daughters,  and  of  George  Barron,  belonged  to  Charle.s.  As  the  contract 
stands,  it  is  a  contract  of  Charles  Barron  to  furnish  himself,  and  three  others, 


395  RAISING    CROPS    ON   SHARES.  §  334 

§  334.  Possession  of  growing  crop  under  husbandry 
contract. — The  j^arties  being  tenants  in  common  of  the  crop 
while  growing,  each  appears  to  be  in  possession  of  it,  upon  the 
principle  that  the  possession  of  each  is  that  of  himself  and  of 
his  cotenant ;  how  far  this  common  possession  of  the  parties 
characterizes  the  right  of  control  in  relation  to  the  manner  in 
which  the  business  is  to  be  conducted,  how  the  land  is  to  be 
cidtivated,  crops  treated,  and  amount  of  labor  requisite  determ- 
ined, does  not  appear  to  have  been  judicially  determined  ;i 
but  from  the  nature  of  the  agreement,  and  the  relation  of  the 

to  crop  with  plaintiff;  he,  Charles,  not  the  laborers,  to  get  one-thu'd,  and  the 
plaintiff  two-thirds,  of  the  crop.  This  did  not  make  Charles  and  the  hands  he 
furnished  the  servants  of  the  lilaintiff.  As  the  contract  is  set  fbrth,  Charles  is 
a  croj)per — the  control  of  the  labor  is  with  him.  It  is  the  ordinary  case  of  a 
man  agreeing,  on  his  part,  to  furnish  the  labor,  and  another  the  land  and  stock. 
The  laborers  are  the  servants  of  Charles,  and  not  of  the  owner  of  the  land. 
Charles  is  a  contractor,  not  a  servant." 

1  Some  of  the  older  authorities  were  to  the  effect  that  one  tenant  in  common 
should  not  maintain  trover  against  his  cotenant,  unless  the  other  absolutely 
destroy  the  chattel  held  in  common,  but  that  doctrine  has  been  long  and  very 
sensibly  exploded,  and  the  law  appears  to  be  settled,  that  if  the  chattel  be 
sold  or  otherwise  disjiosed  of  by  one  cotenant,  the  other  may  maintain  trover. 
(1  Chit.  PI.  90,  91,  178,  179;  Hyde  u.  Storer,  9  Cow.  230-233;  Panninter  v.  Kelly, 
18  Ala.  718.) 

Smyth  V.  Tankersley,  20  Ala.  212;  Williams  v.  Nolen,  34  Ibid,  167.  "One 
tenant  in  common  cannot  maintain  an  action  of  trover  against  his  cotenant, 
without  proof  that  the  common  property  has  been  destroyed,  sold,  or  otherwise 
disposed  of  by  the  defendant."    (Lowe  v.  Miller,  3  Gratt.  205.) 

In  Ai^i^ling  v.  Odom,  iC>  Ga.  585,  it  was  decided  that,  on  a  cropping  contract, 
the  possession  of  the  land  was  in  the  owner,  as  against  the  cropper ;  that  the 
latter  was  a  laborer,  working  for  hire,  to  be  paid  in  part  of  the  crop  when  it 
should  become  matured,  and  that  "the  title  to  the  crop,  subject  to  wages,  is  in 
the  owner  of  the  land."  "That,  therefore,  no  person  can  purchase  or  take  a 
lien  on  the  cropper,  to  wit,  his  share  of  the  crop,  until  the  bargain  be  completed, 
to  wit,  until  the  advances  of  the  planter  to  the  cropper,  for  the  supplies,  have 
been  paid  for.  A  different  rule  might  obtain  as  to  a  tenant,  the  right  of  the 
landlord  for  supplies  being  only  a  lien.  But  the  cropper's  share  of  the  crop  is 
not  his  until  he  has  comx^lied  with  his  bargain." 

But  the  converse  of  this  proposition  was  held  in  Aiken  v.  Smith,  21  Yt.  172,  in 
which  the  cropper's  interest  in  the  crop,  and  his  right  to  dispose  of  it,  was  elabo- 
rately discussed,  and  the  ruling  was  that  the  cropper's  interest  was  as  defin- 
able as  that  of  any  other  person  in  a  growing  crop;  tliat  at  all  times  he  was, 
with  the  owner,  a  tenant  in  common  in  it,  and  in  no  sense  a  laborer  for  hire  who 
was  to  be  paid  a  share  of  -the  crop,  and  that,  therefore,  he  could  sell  his  interest 
at  any  time  to  a  third  party,  who  would  then  become  substituted  in  his  place, 
and  become  a  tenant  in  common  with  the  owner  of  the  soil ;  and  this  proposition 
appears  to  be  conceded  by  the  great  mass  of  cases.  (Lowe  v.  Miller,  3  Gratt. 
200-208;  Ferrall  v.  Kent,  4  Gill.  209.) 

Bernal  v.  Hovious,  17  Cal.  542,  in  which  a  doctrine  diametrically  opposite  to 
that  of  Brazier  v.  Ansley,  11  Ired.  14,  is  laid  down,  viz:  That  the  cropper's  inter- 


§§  335-6  RAISIXG    CROPS    ON    SHARES.  396 

parties  to  the  subject-matter,  it  appears  to  result  that,  Avhilc 
neither  party  may  exercise  his  ownership  to  the  injury  of  the 
other,  or  to  the  detriment  of  the  growing  crop,  the  possession 
is  practically,  for  the  legitimate  purposes  of  the  farming  opera- 
tions, In  the  cropper,  and  he  must  exercise  over  the  growing 
crop  such  control  as  is  incident  to  its  care  and  culture  ;  he  is 
bound  to  the  exercise  of  requisite  labor,  care,  and  skill  to  bring 
the  crop  to  maturity ;  and  to  do  so,  the  possession  of  it  while 
growing  must  be  In  him. 

§  335.  The  cropper  must  farm  in  a  husbandlike 
manner. — The  general  principle  controlling  all  contracts  is 
applicable :  work  under  a  contract  Avhich  omits  to  specify  the 
manner  of  its  being  done,  is,  by  implication  of  law,  to  be  done  in 
a  workmanlike  manner ;  and  where,  as  may  often  occur  in  this 
class  of  agreements,  no  specific  mode  of  culture  or  of  division 
of  the  crops  is  designated,  the  law  will  supply  the  defect,  and, 
by  implication,  establish  a  covenant  on  the  part  of  the  cropper 
to  do  the  work  and  treat  the  land  in  a  workmanlike  manner.^ 

§  336.  As  to  what  is  proper  husbandry  may,  of  course, 
like  any  other  covenant,  appear  in  the  contract,  but  in  the  ab- 
sence of  such  provision,  local  usage  and  custom  in  the  vicinity 
Avill  control.^ 

The  prevailing  theory  in  such  matters  is  that  parties,  in  the 
use  of  language   in   making  contracts,  give  to  it  such  signlfi- 

est  in  a  growing  crop  can  not  only  be  sold  by  him,  but  also  may  be  sold  by  the 
slierifE  on  execiition  against  liim,  and  the  purchaser  will  become  tenant  in  com- 
mon with  the  owner  of  the  land. 

1  Smith  V.  Nelson,  33  Iowa,  24.  "  Wliere  a  contract  fails  to  specify  the  manner 
in  which  the  work  is  to  be  done,  it  will  be  held,  as  a  matter  of  law,  that  it  was 
to  be  done  in  a  workmanlike  manner." 

1  Clemm  v.  Martin,  34  Ind.  341.  "  A  stipulation  in  a  lease  for  farming  that  the 
crop,  when  harvested,  shall  be  divided  according  to  the  custom  prevailing 
among  the  farmers  in  the  neighborhood  in  which  the  land  is  situated,  is  valid." 

Scruggs  V.  Gibson,  40  Ga.  511,  in  which  it  was  held  that  where  there  was  an 
agreement  made  to  cultivate  A's  land  by  B,  and  raise  a  crop  on  it,  but  nothing 
was  said  about  rent  or  price  to  be  paid  for  use  of  the  land,  and  it  was  proven 
that  there  was  a  custom  in  the  neighborhood  to  rent  land  for  one-third  of  the 
crop,  it  was  held  that  there  was  an  implied  agreement  to  conform  to  this  cus- 
tom, and  that  the  parties  would  be  deemed  to  have  made  the  usual  cropping 
contract,  and  a  distress  proceeding  was  authorized  to  give  the  owner  of  the  land 
his  share  of  the  croi>. 


397  RAISING    CROPS    ON    SHARES.  §  337 

cance  as  it  generally  has  In  the  vicinity,  and  is  by  common 
custom  given  to  it  by  persons  in  the  neighborhood  under  similar 
circumstances.  Technical  terms,  words,  and  phrases  may  con- 
vey to  the  mind  different  impressions,  and  may  have,  in  effect, 
different  meanings  in  different  places. 

The  whole  theory  of  contract  is  based  on  the  idea  of  the 
minds  of  the  parties  having  met  and  agreed  ;  to  show  what  they 
agreed  upon  may  not  always  be  done  by  reducing  the  language 
of  their  contract  to  any  precise,  abstract  standard  of  definition, 
but  the  true  way  is  to  give  to  their  language  such  significance 
as  the  parties  intended,  and  no  way  more  just  to  ascertain  their 
understanding  has  been  found,  than  to  apply  local  rules  of  con- 
struction established  at  the  place  by  persons  engaged  in  making 
similar  arrangements.  The  same  rule  of  construction  applies 
to  contracts  or  covenants  which  legal  presumptions  establish ; 
the  law  only  makes  use  of  language  for  the  parties,  by  assuming 
that  they  made  covenants  which  they  ought  to  have  made. 

§  337.  When  cropping  contract  becomes  an  ordinary 
tenancy. — The  relation  of  landlord  and  tenant  is  created  when 
the  contract  is  that  the  cropper  shall  have  the  exclusive  jdos- 
session  and  pay  for  it  by  a  portion  of  the  crop ;  the  distinction  is 
a  nice  one,  and  upon  it  depends  the  relation  of  the  parties  each 
to  the  other,  and  to  the  subject-matter.^ 

The  distinction  must,  however,  not  be  lost  sight  of,  between 
possession  of  the  growing  crop  for  the  purposes  of  cultivat- 
ing the  land,  caring  for  the  crop,  and  the  performance  of  such 
labor  as  the  contract  calls  for,  an  absolute,  uncontrolled  pos- 
session of  the  land  for  the  ])urpose  of  raising  the  crop. 

1  4  Kent's  Com.  05-0.  "But  if  the  contract  be  that  the  lessee  possess  the  land 
with  the  usual  privileges  of  exclusive  enjoyment,  it  is  the  creation  of  a  tenancy 
for  a  year,  though  the  land  be  taken  to  cultivate  on  shares."  (.Tackson  r.  Brow- 
nell,  1  Johns.  267;  1  Bell's  Comm.  75-7;  Hart  v.  Hatch,  40  N.  H.  97.) 

The  permission  to  go  ujion  the  land  to  raise  a  croi)  is  more  of  a  license  than  a 
lease;  "  it  is  an  authority  to  do  a  particular  act,  or  series  of  acts,  upon  another's 
land,  without  possessing  any  estate  therein.  It  is  founded  in  i^ersonal  confidence, 
and  is  not  assignable,  nor  within  the  Statute  of  Frauds."  f3  Kent's  Com. 
452-.";  Alwood  v.  Ruckman,  21111.  202.)  "When  the  facts  are  doubtful  as  to 
whether  the  possession  and  control  are  absolute  and  exclusive  in  the  tenant,  or 
jointly  in  the  owner  of  the  land  and  the  cultivator  of  the  croi3,  and  whether 
the  right  of  entry  continvies  for  the  year,  or  only  till  the  crop  is  removed;  the 
inclination  will  be,  and  should  always  be,  in  favor  of  the  latter  conclusion." 


§  338  RAISING    CROPS   OX    SHARES.  398 

The  possession  of  a  tenant  in  common  is  the  possession  of 
his  cotenant,  and,  so  long  as  the  contract  is  that  of  raising  the 
crop  on  shares,  the  parties  are  tenants  in  common  of  the  crop ; 
hence,  in  the  possession  of  the  cropper  there  is  nothing  exclus- 
ive, and  his  possession  is  that  of  his  cotenant,  the  owner  of  the 
land. 

An  important  covenant  of  a  lease  is  that  the  tenant  shall  have 
the  quiet,  peaceable,  and  uninterrupted  possession  of  the  de- 
mised premises ;  it  is  the  manifest  intention  of  the  parties  that 
the  landlord  shall  be  excluded,  and  the  tenant  may  have  his 
action  against  him  if  he  interferes  with  the  possession  during 
the  term  of  the  lease ;  and  the  existence  of  a  tenancy  in  com- 
mon, whereby  each  has  the  right  of  entry  and  possession,  would 
destroy  the  covenant  for  exclusive  possession  by  the  tenant. 

The  law  is  too  well  settled  to  admit  of  dispute,  or  to  require 
authorities  for  its  support,  that  where  one  lets  to  another  a  piece 
of  land  for  the  simple  purpose  of  raising  a  single  crop  upon  it, 
of  which  the  owner  of  the  land  is  to  have  a  part,  and  the  one 
who  cultivates  it  is  to  have  a  part  to  pay  him  for  the  cultiva- 
tion, that  in  that  case  the  relation  of  landlord  and  tenant  need 
not  necessarily  exist,  but  that  the  parties  may  be  tenants  in  com- 
mon in  the  crop  which  is  raised.^ 

§  338.  Agreement  to  pay  rent  with  part  of  crop  makes 
a  tenancy. — The  letting  of  land  for  a  part  of  the  crop,  to  be 
delivered  at  harvest  time,  is  not  a  cropping  contract.  In  this 
case  a  contract  is  made  for  the  use  of  the  land  for  the  term, 
which  may  be  determined  in  the  agreement  by  specifying  the 
length  of  its  duration,  or  by  limiting  it  to  such  time  as  may  be 
required  to  plant,  raise,  and  harvest  the  crop ;  the  term  is  either 
definite,  or  by  the  agreement  may  be  made  so  by  the  circum- 
stances and  occurrences  indicated ;  the  rent,  instead  of  money, 
is  to  be  paid  in  part  of  the  produce,  and  is  none  the  less  rent 
because  the  precise  amount  is  not  determined  at  the  time  when 
the  lease  is  made.     Such  a  contract  is  a  lease  ;  the  owner  of  the 

iHare  v.  Celey,  Cro.  Eliz.  143;  Foote  «.  Colvin,  3  Johns.  216;  Braclesh  v. 
Schenck,  8  Ibid,  117;  DeMott  v.  Hagarman,  8  Cow.  220;  Caswell  v.  Distrioli,  15 
Wend.  379;  Putnam  v.  Wise,  1  Hill,  234;  Bisliop  v.  Doty,  1  Vt.  37;  Chandlers. 
Thurston,  10  Pick.  205;  Walker  v.  Fitts,  24  Pick.  191:  Maverick  v.  Lewis  et  al.  3 
McCall,  211;  Bernal  v.  Hovious,  17Cal.  544. 


399  RAISING   CROPS    ON    SHARES.  §  339 

land  has  no  right  of  possession  and  no  ownership  of  the  crop 
until  it  is  harvested  and  delivered  to  him,  and  the  law  is  well 
settled  that  there  may  be  a  leasing  of  land  from  year  to  year, 
or  for  a  single  year,  where  the  relation  of  landlord  and  tenant 
may  exist,  although  the  rent  is  to  be  paid  by  a  portion  of  the 
crop,  in  which  case  the  parties  are  not  tenants  in  common  of  the 
crop  raised,  but  the  title  to  the  whole  is  in  the  tenant  until  the 
rent  stipulated  is  paid.^ 

§  339.  The  intention  of  the  parties  characterizes  the 
contract. — Whether  the  parties  are  landlord  and  tenant,  or  ten- 
ants in  common,  under  cropping  contract,  as  in  other  contracts, 
depends  on  the  intention  of  the  parties ;  and  this  intention 
must,  in  most  cases,  be  inferred  from  the  circumstances  which 
attend  the  case.  In  general,  the  question  of  possession  will  de- 
termine the  matter.  Where  the  tenant  moves  on  to  the  farm, 
and,  with  the  consent  or  acquiescence  of  the  owner,  occupies 
and  controls  it  exclusively,  as  if  it  were  his  for  the  time 
being,  and  is,  by  the  agreement,  so  to  occupy  it  for  the  year,  it 
would  be  deemed  to  be  in  his  exclusive  possession ;  and  the 
contract  would  amount  to  a  lease  of  the  premises,  although  the 
rent  was  to  be  paid  in  a  part  of  the  crops,  the  amount  of 
which  was  to  be  determined  by  the  amount  of  the  crop  raised.^ 

1  Dulaney  v.  Dickerson,  12  Ala.  601;  Wells  v.  Preston,  25  Cal.  59.  "  An  agree- 
ment in  writing  between  two  parties,  by  which  the  party  of  the  first  part  de- 
mises and  leases  to  the  party  of  the  second  part  land,  (describing  the  same)  for 
a  term  specified;  and  the  party  of  the  second  part  agrees  to  cultivate  and  plant 
the  land  at  his  own  expense,  and  deliver  on  the  premises,  to  the  party  of  the 
first  part,  one-sixth  of  all  the  crops  raised  as  soon  as  harvested,  and  not  to 
underlet  the  premises  or  yield  the  possession  to  any  person  other  than  the  lessor, 
without  the  lessor's  consent  in  writing,  is  a  lease,  and  not  a  contract  for  the 
services  of  the  party  of  the  second  part,  for  which  he  is  to  receive  as  compen- 
sation a  portion  of  the  crops  he  may  produce." 

"If  the  agreement  contain  terms  which  by  themselves  would  import  a  lease, 
and  other  terms  which  provide  for  a  division  of  the  crops,  and  it  is  doubtful 
which  it  is— a  lease  or  a  cropping  contract^it  will  be  deemed  a  cropping  con- 
tract, by  reason  of  the  division  of  the  crops."     (Ibid,  64.) 

So  in  Brozier  v.  Ansley,  11  Ired.  14,  it  was  held  that  it  was,  in  that  State,  (K 
C. )  a  well  settled  law  that  "  a  cropper  has  no  such  interest  in  the  crop  as  can  be 
subjected  to  the  payment  of  his  debts,  while  it  remains  e?i  masse;  until  a  division 
is  made,  the  whole  is  the  property  of  the  landlord."  Citing  State  v.  Jones,  2 
Dev.  &  Bat.  544;  Hare  v.  Pearson,  4  Ired.  77,  which  sustain  the  proposition,  but 
only  incidentally,  and  not  with  direct  effect  to  the  point. 

2  Taylor's  Landlord  and  Tenant,  Sec.  24;  Tuttle  v.  Bebee,  8  Johns.  152; 
Bailey  v.  Fillebrown,  9  Me.  12;  Butterfield  v.  Baker,  5  Pick.  552. 


§  340  RAISING   CROPS    ON   SHARES.  400 

In  such  a  contract,  the  tenant  wouhl  be  held  to  be  the  ex- 
clusive owner  of  the  crop  while  it  was  growing,  and  even  after 
it  was  harvested,  until  the  share  appropriated  to  the  payment 
of  rent  Avas  set  apart  and  paid  over  or  delivered  to  the  land- 
lord.i 

On  the  other  hand,  where  the  owner  of  the  land  resides 
upon  it,  and  continues  to  exercise  control  over  it  as  the  owner, 
and  allows  another  to  cultivate  a  crop  upon  a  part,  or  even 
the  whole  of  it,  and  is  to  receive  a  part  of  the  crop  as  his 
compensation  for  the  use  of  the  land,  there  is  no  such  right 
of  possession  of  the  land  as  makes  the  cropper  the  tenant,  or 
entitles  him  to  any  right  of  entry  upon  the  land  other  than 
so  far  as  is  necessary  for  the  growing,  harvesting  of  the  croj), 
and  removing  his  portion  thereof ;  and,  in  such  cases,  the  par- 
ties are  tenants  in  common  as  to  the  crop.^ 

§  340.  Cropping  on  shares  a  partnership,  when. — Under 
a  cropping  contract,  the  2:>roceeds  of  the  farm  become,  to  a  lim- 
ited extent,  a  partnership  fund,  out  of  Avhich  the  one  who  works 
the  place  is  to  be  paid  for  his  labor  and  for  Avhat  he  has  done 
and  furnished  toward  the  production  of  the  crop,  and  out  of 
which  the  owner  of  the  farm  is  to  receive  pay  for  the  use  of 
his  land,  and  for  what  manure,  seed,  or  other  thing  which  he 
has  provided. 

This  joint  property,  so  far  as  the  ownership  and  division  of  it 
goes,  is  subject  to  the  general  rules  affecting  partnership  assets ; 
and  the  joint  accounts  between  the  parties,  growing  out  of  the 

1  Smyth  V.  Tankersley,  20  Ala.  216.  "If  the  tenant  take  an  interest  in  the  land, 
it  is  a  lease,  by  whatever  words  made ;  and  the  payment  of  a  specific  portion  of 
the  crop  is  then  simply  a  payment  of  the  rent  in  kind." 

Symonds  v.  Hall,  37  Me.  354.  "  The  lessee  of  a  farm,  who  stipulates  that  one- 
half  the  hay  shall  be  consumed  on  the  farm,  and  the  other  half  divided  between 
the  lessor  and  lessee,  until  a  division  is  made,"  has  the  entire  i^roiierty  in  the  hay 
until  dicision  be  made.  (Dockham  v.  Parker,  9  Me.  137;  Wells  v.  Preston,  25  Cal. 
G2-4;  Garland  v.  Hilburn,  23  Me.  442.) 

"  4  Kent's  Com.  95-G;  Taylor's  Landlord  and  Ten.  Sec.  24;  Bernal  v.  Hovious, 
17  Cal.  544;  Warner  v.  Hoisington,  42  Vt.  94;  Yale  v.  Seeley,  15  Vt.  221;  Hubbell 
V.  Wheeler,  2  Aiken,  359 ;  Williams  v.  ISTolen,  34  Ala.  167. 

Walls  V.  Preston,  25  Cal.  65.  "The  object  of  Courts,  in  adopting  rules  of  con- 
struction, is  only  to  furnish  means  to  so  interpret  the  agreement  as  to  ascertain 
the  intention  of  the  parties.  The  object  is  not  to  make  a  contract  for  the 
parties,  nor  to  vary  the  terms  of  the  covenants  they  Tiave  entered  into ;  nor  is  it 
arbitrarily  to  insert  a  covenant  they  have  not  agreed  to." 


401  RAISING   CROPS   ON   SHARES.  §  340 

contract,  are  to  be  settled  as  partnership  accounts  arc  settled, 
and  the  property  treated  as  partnership  property  is  treated. 

It  is  an  established  principle  that  nothing  can  be  considered 
as  the  exclusive  right  of  one  partner  but  his  proportion  of  the 
funds,  upon  a  balance  being  struck  between  all  the  partners ; 
in  other  words,  one  partner  has  no  exclusive  right  to  the  part- 
nership funds  until  his  copartner  is  paid  all  the  demands  he 
has  in  that  character  on  the  partnership.^ 

To  this  general  rule  should  be  submitted  questions  affecting 
the  rights  of  the  parties,  under  a  cropping  contract,  to  the 
crop  produced  while  they  occupy  the  relation  to  the  j3roperty 
and  each  other  provided  for  thereby.  But,  of  course,  as  soon 
as  the  division  is  made,  all  partnership  relation  ceases.  But  it 
does  not  follow  that,  to  all  intents,  the  parties  to  a  cropping 
contract  are  partners.  The  inclination  of  the  Courts  is  against 
construing  these  agricultural  contracts  as  partnerships  to  the 
full  extent  of  authorizing  the  parties  to  bind  each  other.  In 
that  important  particular,  as  in  many  others,  these  contracts 
fall  short  of  being  partnership  agreements ;  but,  as  joint  own- 
ers of  the  crop,  they  become  subject  to  the  same  rules  as  part- 
ners, in  respect  to  the  joint  property.^ 

1  Canfield  ?'.  Hard,  G  Conu.  184;  Taylor  v.  Bradley,  39  N.  Y.  129;  Summers  v. 
Joyce,  40  Conn.  592. 

-  "  A  and  B  entered  into  a  contract,  by  whicli  A  leased,  demised,  and,  to  farm, 
let  to  B  a  farm  for  three  years,  and  B  agreed  to  furnish  all  the  labor  necessary 
for  its  cultivation ;  each  party  to  fiirnish  half  of  all  the  necessary  stock  and 
tools,  and  two  tons  of  pilaster,  annually;  the  net  iiroceeds,  income,  and  increase 
of  the  farm  to  be  annually  divided  equally  between  them.  Held,  that  the  con- 
tract was  neither  strictly  a  lease,  nor  a  hiring  of  labor,  but  was  of  a  mixed  na- 
ture, and  that  the  products  of  the  farm  were  the  joint  property  of  the  parties." 
(Somers  v.  Joyce,  40  Conn.  592.) 

"And  held,  that  the  joint  accounts  between  the  parties  were  to  be  settled, 
and  the  i:)roperty  treated  like  partnership  property."    (Ibid.) 

Farm— 26. 


)41-2  DAIEY    CONTRACTS.  402 


CHAPTER  XXXI. 

DAIRY  CONTRACTS, 

§  341.  Peculiar  characteristics  of  dairy  contracts. 

§  342.  Owner  may  retain  partial  control  of  laroi^erty. 

§  343.  Owner  may  retain  control  sufficient  to  guard  his  interest. 

§  344.  The  owner  may  dictate  as  to  breeding  cows. 

§  345.  Covenant  to  raise  calves. 

§  346.  Lease  of  real  and  personal  property  by  same  contract. 

§  347.  Landlord's  loss  of  rent  by  interference  with  leased  property. 

§  348.  Possession  of  real  and  personal  iiroi)erty  tender  dairy  contract. 

§  349.  Right  to  "increase  "  from  cows  under  dairy  contract. 

§  350.  Duty  of  tenant  under  dairy  contract. 

§  351.  For  loss  by  theft,  hirer  of  animals  not  responsible. 

§  352.  Cattle  must  be  kept  on  the  land  designated. 

§  341.   Peculiar  characteristics   of   dairy   contracts. — 

The  ordinary  dairy  contract,  in  which  the  owner  of  the  cows, 
and  of  the  land  on  which  they  are  to  be  pastured,  lets  the  prop- 
erty, real  and  personal,  to  the  other  party,  to  dairy  on  shares, 
presents  peculiar  features,  which  are  so  characteristic,  that  to 
regard  them  in  the  ordinary  view  of  husbandry,  or  "  cropping  " 
contracts,  is  not  wholly  safe.  The  covenants  of  a  cropping  con- 
tract are  measurably  reducible  to  principles  affecting  the  title 
and  possession  of  realty,  while  dairy  contracts  relate  primarily 
to  personal  property,  the  cows,  and  the  produce  from  their 
milk,  with  the  use  of  the  pasture  land  as  an  incident  to,  rather 
than  the  controlling  feature  of,  the  arrangement. 

§  342.  The  owner  may  retain  partial  control  of  prop- 
erty.— The  owner  of  cattle,  under  dairy  contract,  retains  cer- 
tain control  over  his  animals  as  to  pasturage,  so  as  to  guard 
against  overstocking  the  land  and  starving  the  stock. 

The  contract  cannot  be  treated  like  an  ordinary  bailment,  or 
letting  for  hire,  of  personal  property.  It  is  not  as  though  the 
bailee  hired  the  cows  to  take  upon  his  own  premises,  or  remove 
them  from  the  land  of  the  letter.  He  has  no  such  right,  and, 
moreover,  that  is  precisely  what  the  owner  of  the  stock  desires 


403  DAIRY    CONTRACTS.  §§  343-4 

to  prevent.  He  purposes  having  tJiem  kept  on  his  own  premiiics, 
and  measurably  under  his  own  control,  in  that  he  may  see  how 
they  are  used ;  and  by  lease  of  the  cows,  with  enough  use  of 
his  land  for  their  pasture,  he  insures  against  their  being  run 
down  by  the  land  being  overstocked.  In  this  important  partic- 
ular, the  lettor  retains  the  control,  and  guards  against  such  in- 
jury as  naturally  might  result  from  a  mere  hirer  of  cows  for 
dairying  purposes  yielding  to  the  temptation  of  putting  on  his 
land  the  utmost  number  which  could  be  kept  on  it  through  the 
milking  season,  when  the  grass  was  green  and  abundant,  while, 
so  soon  as  the  pasture  became  dry  and  scant,  the  animals  might 
suffer  and  be  injiu'cd. 

§  343.  The  owner  may  retain  requisite  control  to  guard 
his  interest. — The  owner  of  cows  under  dairy  contract  retains 
such  control  of  his  animals  as  to  insure  proper  breeding. 

In  the  important  matter  of  providing  for  the  cows  continuing 
to  be  of  value  for  dairy  purposes  after  the  expiration  of  the 
lease,  the  owner  has  an  interest  in  which  the  hirer  does  not  join. 
The  purposes  of  dairying  through  the  season  for  which  the  ani- 
mals are  hired  do  not  demand  any  attention  from  the  hirer,  so 
far  as  his  interest  extends,  while  it  is  of  the  utmost  importance 
to  the  owner  of  the  animals  that  his  cows  be  duly  "  served,"  in 
order  that  they  may  "  come  in  "  the  following  year.  Hence, 
the  provision  is  natural  and  customary  to  be  inserted  into  dairy- 
ing leases,  covenants  making  due  provision  in  this  behalf  for  the 
grazing  with  the  cows,  and  properly  caring  for  such  bulls  as 
may  be  requisite  for  the  purposes  indicated,  and  to  that  extent 
the  owner  of  the  herd  and  the  land  niny  retain  control,  notwith- 
standinsf  the  lease. 

§  344.   The  owner  may  dictate  as  to  breeding  cows. — 

The  lettor  of  animals  and  land  on  a  dairy  contract  may  desig- 
nate the  breed  of  bulls  to  be  run  with  his  cows.  The  peculiar- 
ity of  the  contract  of  letting  cows  on  a  dairy  contract  extends 
to  such  guarding  of  the  future  interests  of  the  owner,  in  which 
the  hirer  has  no  part,  that  a  covenant  as  to  the  breed  of  bulls 
to  be  run  with  the  cows  has  been  deemed  a  proper  one,  and  is 
not  unusual. 


§  345  DAIRY   CONTRACTS.  404 

An  important  consideration  to  the  owner,  in  dairying  his 
cows,  often  is  the  improvement  to  his  herd  by  raising  the  grade 
of  it  by  "  breeding  up,"  and  this  consideration  may  well  induce 
him  to  let  out  his  land  and  animals  on  a  dairy  contract,  or 
become  a  partial  inducement  thereto.  The  hirer,  even  where 
for  a  term  of  years  he  may  in  his  own  interest  be  compelled  to 
keep  bulls  with  the  herd,  has  no  personal  interest  in  the  grade  or 
"•  breed  "  of  such  animals,  and  he  would  naturally  be  inclined 
to  keep  low-grade  or  cheap  animals ;  but  wliere,  by  contract, 
the  owner  stipulates  in  his  interest  for  certain  character  of 
breeding,  the  covenant  may  be  enforced. 

§  345.  Covenant  to  raise  calves. — The  lettor,  under  dairy 
contract,  may  stipulate  for  rearing  progeny  of  cows  leased  for 
him  by  the  hirer. 

Whatever  tends  to  induce  either  party  to  a  contract  to  enter 
into  the  agreement,  when  the  other  party  is  informed  of  such 
inducement,  and  assents  to  it,  becomes  a  part  of  the  considera- 
tion on  which  the  contract  stands.  A  price  specified  is  not 
necessarily  the  entire  consideration  of  an  agreement.  From 
the  word  itself,  it  appears  that  the  minds  of  the  parties  must 
meet ;  there  must  be  an  "  agreement,"  and  the  use  of  the  writ- 
ten contract  is  but  clearly  to  show  what  it  was  to  which 
the  parties  agreed.  Hence,  no  one  part  of  the  instrument  is 
alone  to  be  regarded.  It  must  be  regarded  as  an  entirety ;  and, 
because  a  price  to  be  paid  is  specified  as  rental,  that  cannot  be 
deemed  the  entire  consideration.  When  the  contract  contains  a 
further  covenant,  like  that  to  raise  a  certain  number  of  calves 
for  the  lettor,  by  the  hirer,  both  money  and  calves  must  be 
deemed  to  have  been  the  consideration  which  induced  the  action 
on  the  part  of  the  lettor.  But  this  further  consideration  must 
be  mentioned  in  the  written  lease,  if  there  is  one,  because  of 
the  general  rule  that  where  a  contract  is  reduced  to  writing, 
that  must  control  and  be  the  proof  as  to  what  it  was  which  was 
agreed  to.  Stipulations,  promises,  considerations,  all  which 
was  said  at  or  before  the  time  when  the  contract  was  reduced 
to  writing  and  executed,  is  deemed  to  have  been  merged  in 
and  completed  by  the  written  instrument,  which  can  only  be 


405  DAIRY    CONTRACTS.  §  346 

attacked  on  such  grounds  as  fraud  or  mistake,  and  such  attack 
must  be  by  direct  action,  brought  for  that  purpose. 

§  346.  Lease  of  real  and  personal  property  by  same 
contract. — In  leases  for  dairy  purposes,  it  sometimes  occurs 
that  all  the  property — cows,  dairy  utensils,  wagons,  and  other 
personal  property — is  rented,  with  the  use  of  the  land  for  pas- 
ture, at  a  money  rental,  entire  ;  and  it  not  unfrequently  occurs 
that  a  price  for  the  term,  per  coav,  is  the  measure  of  the  entire 
rental.  How  any  action  for  recovery  of  possession  of  the  land, 
in  case  the  rent  remains  unpaid  when  due,  can  be  maintained, 
is  not  clearly  apparent ;  certainly  it  will  be  difficult,  in  such 
cases,  to  enforce  the  provisions  for  summary  ejectment  of  the 
tenant,  provided  by  the  laws  against  tenants  holding  over, 
which  ordinarily  form  a  part  of  the  statutes  of  the  several 
States,  known  as  the  Forcible  Entry  and  Unlawful  Detainer 
Acts.i 

1  Gary  v.  "Welch,  Supreme  Court  of  California,  July  Term,  1874.  In  this  case, 
these  questions  arose:  a  lease  was  made  by  jDlaintiff  to  defendant  "of  the  fol- 
lowing described  j^roperty,  viz.,  one  hundred  cows,  one  wagon,  and  all  the 
usual  and  necessary  dau-y  fixtures  and  utensils  to  carry  on  said  dairy  of  one 
hiTndred  cows,  together  with  sufficient  use  of  the  following  described  land, 
[describing  it]  to  feed  said  cattle,  and  carry  on  said  dairy.  To  have  and  hold 
for  the  term  of  three  years,  to  wit,  from  the  first  day  of  October,  1872,  to  the 
first  day  of  October,  1873 ;  yielding  and  paying  therefor  the  rent  of  .1?2,700  per 
year,  or  the  sum  of  5?8,100  for  said  term  of  three  years."  The  lease  also  con- 
tained the  usual  covenants,  on  the  part  of  the  tenant,  to  pay  the  rent,  and.  in 
default  thereof,  to  yield  possession.  An  installment  of  rent  fell  due ;  defendant 
did  not  pay  it ;  demand  was  duly  made,  and,  under  the  Forcible  Entry  and  Un- 
lawful Detainer  Act,  suit  was  commenced  to  eject  tlie  tenant  from  the  land. 

Defendant,  in  due  form,  demurred  to  the  complaint;  and  the  objection  was 
raised,  and  at  every  stage  of  the  trial  insisted  upon,  that  such  an  action  could 
not  be  maintained. 

The  Court  below  overruled  these  objections,  upon  the  ground  that  the  realty 
was  leased,  that  the  lease  contained  the  usual  covenant  of  forfeiture  for  non- 
payment of  rent,  and,  upon  due  demand,  there  having  been  a  refusal  on  the 
part  of  the  tenant  to  respond  at  all  to  the  demand  for  rent,  it  must  result  that 
there  had  occurred  such  a  forfeiture  as  the  lease  provided  for. 

From  the  judgment  of  the  Court  below  an  appeal  was  taken  to  the  Supreme 
Court,  where  the  propositions  involved  were  fully  argued  and  considered  by 
the  Court. 

The  first  proposition  involved  was  that  the  action  of  forcible  entry  and  tin- 
laicful  detainer  is  for  real  property  only.  (Taylor's  Landlord  and  Tenant,  Sec. 
78()".) 

Second.  There  is  no  means  of  determining  the  precise  amount  of  rent  which 
was  due  for  the  use  of  the  land.  To  worli  a  forfeiture,  there  must  be  some  defi- 
nite sum  due  and  unpaid,  and  it  is  not  enough  that  some  rent  must  be  payable; 


§  847  DAIKY    COXTKACTS.  40G 

§  347.  Landlord's  loss  of  rent  by  interference  v/ith 
property. — Interference  by  the  landlord  witli  any  of  the  per- 
sonal property  leased  might  endanger  right  to  rent  of  realty. 
The  peculiar  danger  of  leasing  personal  and  real  property  vmder 
one  contract  becomes  apparent  from  another  point  of  view.  It 
might  become  questionable  Avhether,  under  any  form  of  action, 
the  contract  for  payment  of  rent  could  be  enforced.  If  the  for- 
feiture of  the  lease  occur  through  non-payment  of  rent,  the  forfeit- 
ure, to  be  effective,  must  be  entire.    There  could  be  no  forfeiture 

from  the  necessities  of  sucli  cases,  the  amount  must  he  determined  or  deterniin- 
ahle.  (Taylor's  Landlord  and  Tenant,  Sec.  786;  Doc  u.  Wandlass,  7T.  E..  117;  Co. 
Litt.  202a,-  Jackson  v.  Kipp,  3  Wend.  230.) 

Third.  Before  the  landlord  could  enter  for  the  non-payment  of  rent,  he  must 
have  made  a  formal  demand  for  the  precise  sum  due.  (Taylor's  Landlord  and 
Tenant,  Sec.  493;  Doe  v.  Paul,  3  C.  &  P.  G13;  Van  Eenselaer  v.  Jewett,  2  K  Y. 
147;  O'Connor  v.  Kelly,  41  Cal.  432.) 

Each  of  these  propositions  was  sustained,  and,  judgment  being  reversed,  the 
cause  was  remanded,  with  directions  to  the  Court  below  to  dismiss  the  action. 

The  chief  objections  to  this  form  of  action  in  the  premises  appear  also  applic- 
able to  ejectment,  and,  had  the  landlord  resorted  to  that,  he  might  still  have 
encountered  the  same  difficulties.  To  constitute  a  forfeiture  for  non-xiayment 
of  rent,  at  common  law,  it  was  requisite,  among  other  things,  that  the  demand 
should  have  been  for  the  precise  sum  due.  (1  Saunder's  Eep.  287,  iSTote  IG;  1  Leon, 
305;  Fabian  &  Windsor's  Case,  Cro.  Eliz.  209;  Taylor's  Landlord  and  Tenant,  Sec. 
493. )  And  the  statutes  of  the  various  States,  although  relaxing  the  rigor  of  the 
ancient  rule  as  to  place,  time,  and  manner  of  making  tlie  demand,  do  not,  in 
terms  or  by  implication,  relieve  the  landlord  from  formal  demand  of  the  pre- 
cise sum  due. 

It  is  true  that  the  statutes  of  some  of  the  States  have  substituted  the  service  of  a 
declaration  in  ejectment  for  a  formal  demand  of  rent,  but  an  analysis  of  these  stat- 
utes shows  that  the  complaint  itself  must  bo  a  demand  for  the  i^recise  sum  due, 
and  the  difficulty  does  not  seem  to  be  obviated.  (2  R.  S.  N.  Y.  505,  Sec.  30;  4  Geo. 
II,  Chap.  28.)  In  O'Connor  v.  Kelly,  41  Cal.  434,  in  ejectment,  the  failure  to  de- 
mand the  precise  amount  due  as  rent  was  held  to  be  fatal  to  plaintiff's  hopes  of 
recovery.     So,  also,  in  Gage  v.  Bates,  40  Cal.  385;  Gaskill  v.  Trainer,  3  Cal.  334. 

From  the  nature  of  things,  a  tenant  being  rightfully  in  possession,  a  forfeit- 
ure can  only  be  established  in  absolute  antagonism  to  him;  no  waiver  of  the 
demand  will  ever  be  implied;  the  mere  failure  to  pay  rent  will  not  make  a  for- 
feitiire ;  the  formal  demand  for  the  precise  sum  due  must  be  shown  affirma- 
tively.    (Gaskill  V.  Trainer,  3  Cal.  340.) 

It  certainly  would  be  a  great  hardship  iijion  the  tenant  if  a  landlord  were 
permitted  to  destroy  the  leasehold  estate  by  making  a  demand  generally  for 
rent  due,  without  specifying  the  particular  sum  claimed,  and  thus  force  the  tenant 
t(j  forfeit  all  rights  under  a  valuable  lease  because  he  may  not,  by  reason  of  un- 
settled accounts  or  otherwise,  have  paid  all  the  rent  which  may  ultimately  be 
shown  to  have  been  due. 

r.ut,  on  the  other  hand,  the  danger  to  the  landlord,  of  these  comjiound  leases 
of  real  and  personal  property,  becomes  apparent  where  the  tenant  is  impecun- 
ious, and  the  rent  is  to  be  made  from  the  dairy  j)roduct  of  the  cows  grazed  upon 
the  land. 


407  DAIRY    CONTRACTS.  §  347 

if  the  landlord  evicted  the  lessee  from  any  portion  of  the  demised 
premises  ;  ^  nor,  if  the  tenant  retained  the  occupation  of  the 
residue,  could  the  lessor  hold  him  for  the  pi'oportionate  rent 
thereof.^ 

K  a  landlord  lease  premises  with  a  water-course  on  them, 
and  afterward  stop  the  water-course,  the  tenant  may  consider  it 
an  eviction ;  so,  if  he  set  up  a  gate  across  a  lane,  or  obstruct 
the  lights  to  a  house,  or  deprive  the  tenant  of  the  special  priv- 
ilege of  using  a  pump  on  adjoining  property.'^ 

And  where  a  lease  is  of  personal  property,  with  the  use  of 
the  realty  as  pasturage,  it  might  Avell  be  an  eviction  on  the  part 
of  the  landlord  to  deprive  the  tenant  of  the  use  of  the  cows ; 
and  he  might  deprive  himself  of  the  right  to  retake  his  cows,  if 
he  find  that  the  tenant  is  abusing  them,  or  to  protect  himself  in 
any  way  which  would  interfere  with  the  possession  of  any  part 
of  the  personal  property.  Any  such  interference  woidd  be  at  a 
risk  of  causing  an  eviction  such  as  might  work  a  forfeiture,  and 
endanger  the  collection  of  any  rent.^ 

1  Taylor's  Landlord  and  Tenant,  315.  "  It  is  also  implied  tliatthe  tenant  shall 
have  the  free  use  of  the  Avhole  of  the  premises;  and  if  he  is  ousted  from  any 
material  j)avt  thereof,  he  may  treat  it  as  an  eviction  from  the  whole  premises." 
(Etherige  v.  Osborn,  12  Wend.  529;  Hay  v.  Cimiberland,  25  Barb.  594.) 

■-^Leishman  v.  White,  1  Allen,  iSD;  Christopher  ?>.  Austin,  11  K  Y.  21G;  Tay- 
lor's Landlord  and  Tenant,  379. 

3  Rhodes  v.  Bullard,  7  East,  IIG;  Salman  v.  Bradshaw,  Cro.  Jac.  304;  Andrews 
V.  Paradise,  8  Mod.  318;  Morris  v.  Edginton,  3  Taunt.  24;  Kidder  v.  West,  3  Lev. 
1G7. 

4  Taylor's  Landlord  and  Tenant,  379.  "  Upon  the  principle  that  a  tenant  shall 
not  be  required  to  pay  rent,  even  for  the  part  of  the  premises  which  he  retains,  if 
he  has  been  evicted  from  the  other  part  by  his  landlord,  it  has  been  held  that,  if 
a  landlord,  without  the  consent  of  his  tenant,  uses  privileges  which  are  appurte- 
nant to  the  premises,  and  which  are  not  expressly  reserved  in  the  lease,  he  is 
not  entitled  to  collect  rent." 

Skaggs  V.  Emerson,  Supreme  Court  of  California,  50  Cal.  3.  "Upon  the  for- 
feiture the  plaintiff  must  rest  as  his  ground  for  any  judgment,  and  he  claims 
that  the  forfeiture  arose  from  non-payment  of  rent.  But  if  the  averments  of 
the  answer,  which  were  stricken  out  by  the  Court  below,  are  true,  no  recovery 
can  be  had  upon  the  covenant  to  pay  rent,  since  defendant  had  been  evicted  by 
plaintiff  from  a  substantial  part  of  the  demised  premises.  The  covenant  to  pay 
rent  is  entire,  and  canot  be  severed  or  apportioned." 

Camarillo  v.  Fenlon,  49  Cal.  203;  Briggs  v.  Hall,  4  Leigh,  484;  Christopher  v. 
Austin,  11  K  Y.  216;  Shixmway  v.  Collins,  6  Gray,  227;  Neale  v.  Mackenzie,  1 
Mees.  &  W.  747;  Blair  v.  Caxton,  18  N.  Y.  529. 

But  see  Edgertonw.  Page,  20  N.  Y.  281;  Academy  of  Music  t'.  Hackett,  2  HQt. 
217;  and  Mortimer  z;.  Brunner,  CBosw.  653.  A  mere  trespass  by  the  landlord, 
as  where  he  piled  firewood  oniiart  of  the  leased  land,  and  which  did  not  inter- 


§  348  DAIRY    COXTRACTS.  408 

§  348,  Possession,  under  dairy  contract,  of  real  and 
personal  property. — As  to  the  right  of  possession  of  the 
property  during  the  term  of  the  leasing  or  dairy  contract,  it 
may  be  conceded  that  the  personal  property  is  certainly  in  the 
possession  of  the  lessee,  or  party  to  the  contract,  who  is  to  use 
the  animals  for  dairying  piu-poses. 

This  is  almost  necessarily  the  case,  because  the  owner  cannot, 
from  the  nature  of  the  case,  retain  any  possession  of  the  cows 
and  other  personal  property  devoted  to  a  particular  purpose  to 
which  it  is  to  be  applied  by  another.  From  the  very  fact  of 
such  devotion,  the  party  who  is  to  put  it  into  effect  must  have 
possession,  except  so  far  as  may  be  affected  by  special  reserva- 
tion, as,  for  instance,  the  wagon  and  horses  may,  by  special 
agreement,  only  be  used  for  marketing  the  dairy  produce  by 
the  tenant,  while  the  general  possession  and  use  is  reserved  by 
the  OAvner.  Such  instances  of  reservation,  liowever,  only  make 
it  more  apparent  that  the  possession  of  the  chief  personal  prop- 
erty to  be  used  in  the  business  must  be  in  the  tenant. 

As  to  the  land,  it  is  not  so  clear.  The  general  possession 
may  remain  in  the  owner,  subject  to  so  much  use  thereof  as  is 
requisite  for  the  j)urposes  of  the  contract,  or  there  may  be  a 
sort  of  common  possession  in  both  parties  to  the  contract,  and, 
in  such  a  case,  it  would  appear  that  either  could  maintain  tres- 
pass against  an  intruder  who  interfered  with  the  enjoyment  of 
the  premises  to  which  either  party  was  entitled.^ 

fere  "with  tbe  substantial  enjoyment  of  tlie  premises,  does  not  amount  to  an 
eviction.     (Lansberry  v.  Snyder,  31 IST.  Y.  514.) 

1  Cornell  v.  Dean,  105  Mass.  435.  In  this  case,  it  was  held  that  one  who  has 
hired  a  farm  on  shares  may  maintain  an  action  against  a  third  party,  whose  cat- 
tle lie  has  agreed  to  pasture  tliereon,  without  joining  his  lessors. 

Herskell  v.  Bushnell,  37  Conn.  36.  "A  let  his  farm  to  B  on  shares,  the  stock 
being  o^\^led  in  common,  each  furnishing  half  the  seed,  and  receiving  half  the 
crops,  and  both  living  in  the  house  on  the  farm.  Held,  that  the  occupation  of 
B  as  tenant  did  not  exclude  the  occupation  of  A,  and  that  A,  under  the  statute, 
could  seize  and  take  into  custody  cattle  trespassing  upon  the  farm;  and  held, 
that  he  was  not  bound  to  act  jointly  with  B  in  seizing  the  cattle." 

The  i^arties  have  a  common  interest  in  the  premises,  and  each  is  damaged  by 
the  trespass — the  entry  of  the  cattle  inflicted  a  common  injury  to  both  parties. 

"It  would  be  absurd  to  require  both  tenants  in  common  in  the  growing  crop 
to  participate  in  taking  into  custody  the  trespassing  animals." 

Each  has  an  immediate  interest  to  protect,  and  incidentally  he  protects  his 
cotenant,  and  the  cotenant  can  have  no  ground  of  complaint  if  he  is  not  asked 
to  join  in  protecting  the  common  interest;  and  a  stranger  who  has  injured  both 
cannot  well  complain  that  both  do  not  sue  him.    (Ibid,  i^.  46.) 


409  DAIRY    CONTRACTS.  §  349 

§  349.  Right  to  increase  from  cows  under  dairy  con- 
tract.— The  increase  from  animals,  while  leased  out  for  dairy- 
ing or  similar  purposes,  as  a  general  rule,  belongs  to  the  tenant, 
for,  according  to  the  general  principle  of  law,  such  increase 
belongs  to  the  person  who,  by  hiring  for  a  time,  becomes  the 
temporary  proprietor  of  ( he  animal. 

The  rule  may  be  taken  to  be  that  where  animals  are  let  for 
hire  their  increase  belongs  to  the  person  who  hires  them,  unless 
it  be  otherwise  agreed  at  the  time  the  contract  is  made.  Where, 
however,  the  animal  is  only  loaned  without  any  remuneration 
for  the  use  of  it,  this  rule  does  not  apply,  and  the  owner  of  the 
dam  is  entitled  to,  and  upon  its  birth  becomes  the  owner  of,  her 
progeny.^ 

But  for  injury  to  property,  or  for  conversiou  of  it,  a  party  can  only  recover 
who  Ims  actual  or  constructive  possession  of  it;  and  if  the  owner  has,  for  the 
time  bein^^.  parted  entirely  with  the  possession  of  the  animals  leased,  the  tenant 
alone  should  sue  for  damage  to  them,  especially  if  he  has  covenanted,  as  is  usual, 
to  return  them  in  good  order  and  condition.  (Putnam  v.  Wiley,  8  Johns.  434; 
Orser  ?'.  Storms,  9  Cow.  687;  Bac.  Abr.  [C]  2.) 

1  Moore  v.  Mohney,  1  Midi.  Nisi  Prius,  143.  "A  let  a  farm  to  B,  and  by  the 
contract  was,  amongst  other  things,  to  furnish  B  a  team  to  work  in  carrying  on 
the  farm,  and  was  also  to  furnish  B  two  or  more  cows  to  be  kejit  by  B,  and  B 
was  to  deliver  to  A  one-half  of  all  the  butter  made  from  said  cows.  Held,  that 
B  was  entitled  to  the  increase  of  the  cows  during  the  term." 

In  this  case,  the  plaintiif  leased  her  farm  to  defendant  for  two-thirds  of  the 
hay,  grain,  and  other  produce  to  be  raised;  plaintiff  to  furnish  seed,  feed,  teams, 
and  tools,  and  in  the  contract  occurs  this  agreement:  "The  said  j)arty  of  the 
first  part,  (plaintiff)  further  agrees  to  furnish  to  the  said  party  of  the  second 
part,  (defendant)  two  or  more  cows,  which  are  to  be  kept  by  the  party  of  the 
second  part,  and  the  party  of  the  second  part  further  agrees  to  deliver,  to  the 
party  of  the  first  part,  one-half  of  all  butter  made  from  said  cows."  Defendant, 
under  this  agreement,  took  possession  of  the  premises  and  personal  property, 
and  remained  so  in  possession,  by  mutual  consent,  from  year  to  year,  for  three 
years,  and  then  gave  up  possession  to  plaintiff,  but  retained  the  progeny  born 
from  the  cows  while  so  in  his  possession.  Plaintiff  replevied  them,  under  the 
plea  that,  owning  the  mothers,  she  also  owned  the  increase,  but  her  claim  was 
not  sustained. 

The  Court  says,  p.  144:  "The  written  contract  being  silent  on  the  subject  of 
the  increase  of  the  cows  during  the  term,  the  legal  right  must  be  determined  by 
the  relation  the  parties  sustain  to  each  other  in  respect  to  the  cows  during  that 
time.  The  contract  seems  to  make  the  defendant  a  bailee  of  the  cows  for  hire. 
They  were  let  to  him  as  a  part  of  the  condition  of  the  lease  of  the  farm,  and  he 
was  also  bound  to  deliver  to  the  plaintiff,  in  consideration  therefoi-,  one-half  of 
all  the  butter  made  from  the  cows."  "Where  animals  are  let  for  hire,  their 
increase  belongs  to  the  person  who  hires  them,  unless  it  be  otherwise  agreed 
upon  by  the  parties  when  the  contract  is  made.  Under  this  rule,  therefore,  the 
defendant  is  entitled  to  the  increase  of  the  cows." 

Orser  v.  Storms,  9  Cow.  687;  Concklin  v.  Havens,  12  Johns.  314. 


§§  350-1  DAIEY   CONTRACTS.  410 

But  this  rule  by  no  means  precludes  the  making  of  a  special 
contract,  by  Avhich  the  tenant,  or  the  party  who  receives  the  ani- 
mals on  a  dairying  contract,  bind  himself  to  deliver  to  the 
owner  of  the  animals  such  of  the  young  born  of  them  as  may 
be  stipulated ;  nor  does  it  militate  against  a  reservation  on  the 
part  of  the  owner,  by  which  he  retains  the  ownership  of  the 
progeny.^ 

§  350.  Duty  of  tenant  under  dairy  contract. — The  hirer 
of  animals  on  a  dairy  contract  is  responsible  for  their  safe- 
keeping. The  general  obligation  of  the  taker  of  animals,  on  a 
dairy  contract  or  lease,  is  substantially  the  same  as  that  of  an 
ordinary  hirer  of  chattels ;  he  is  bound  to  take  such  care  of  the 
animals  as  the  circumstances  of  the  case  may  demand,  the 
measure  thereof  being  that  he  should  provide  food  and  shelter 
for  the  animals,  such  as  the  necessities  of  the  case  require,  and 
treat  them  kindly.  The  bailment  is  for  a  special  purpose,  and 
with  reference  to  the  animals  being  returned  in  such  condition 
as  the  parties  contemplated,  with  reference  to  their  future  use- 
fulness ;  and,  like  other  hirers  of  personal  property,  the  bailee 
is  bound  to  such  diligence  and  care  of  the  animals  intrusted  to 
him  as  an  ordinarily  prudent  man  would  naturally  bestow 
upon  his  own  property  of  a  similar  character. 

§  351.   For  loss  by  theft,  the  hirer  is  not  responsible. — 

Li  cases  of  robbery  the  hirer  is  not  responsible,  unless  the  theft 
occurs  through  his  negligence  in  failing  to  take  due  precautions 
against  a  recognized  danger.  Robbery  is  generally  regarded  as 
an  accident  by  superior  force  (^vis  major).  But  if  the  bailee 
is  aware  that  the  vicinity  is  infested  by  cattle-thieves,  and 
that  there  is  especial  danger  of  theft  to  be  apprehended,  he 
must  take  all  due  precautions  within  his  power  to  place  and 

1  Putnam  v.  Wiley,  8  Johns.  432.  "A  person  cannot  maintain  trespass  for 
goods  unless  he  has  the  actual  or  constructive  possession  of  them  at  the  time. 
He  must  have,  at  least,  such  a  right  as  to  be  entitled  to  reduce  the  property  to 
his  possession  when  he  pleases. 

"  Where  A  delivered  to  B  a  number  of  cows  and  sheep,  which  B  promised  to 
re-deliver  Avithin  one  year,  with  their  increase,  and  to  pay  for  such  as  should  be 
lost  or  destroyed,  and  not  redelivered,  this  was  held  a  letting  of  the  chattels 
for  a  year,  for  a  valuable  consideration,  and  not  a  naked  bailment,  and  that  A 
could  not  maintain  trespass  against  a  person  who  took  them  from  the  possession 
of  B." 


411  DAIRY    COXTRACTS.  §  352 

keep  tlie  animals  under  such  guard  as,  under  the  ch'cumstances, 
an  ordinarily  prudent  person  would  with  cattle  which  belonged 
to  him.i 

§  352.  Cattle  must  be  kept  on  the  leased  land.— The 
hirer  of  animals  on  a  dairy  contract  cannot  remove  them  from 
the  premises  of  lessor,  where  they  are  leased  to  him  in  the  ordi- 
nary manner,  to  be  kept  on  the  premises  of  the  owner.  He 
comes  within  the  principle  of  the  rule  of  those  who  hire  prop- 
erty for  a  certain,  specified  use.  There  is  no  general  property 
accorded  in  the  property  for  the  term,  but  only  a  special, 
limited  one,  for  the  precise  purposes  of  the  bailment ;  and  just 
so  far  as  that  is  exceeded,  the  hirer  becomes  a  wrong-doer  by 
taking  to  himself  that  which  has  not  been  yielded  by  the  owner, 
in  whom  lies  the  general  property,  or  ownership ;  and  he  may 
be  treated  by  such  owner  as  having  taken  the  animals  to  his 
own  use,  and  be  by  him  held  as  a  purchaser  of  them  at  their 
full  value,  whenever  he  acts  toward  them  in  a  manner  incon- 
sistent with,  or  in  excess  of,  the  sj^ecial  purpose  of  the  letting. 

The  general  rule  of  hiring  applies,  that  if  the  thing  let  is 
used  for  a  different  purpose  from  that  which  was  intended 
by  the /parties,  or  in  a  different  manner,  the  hirer  is  not  only 
responsible  for  all  daniages,  but  if  a  loss  afterward  occurs, 
although  by  inevitable  casualty,  he  will  generally  be  responsible 
therefor.^  In  short,  such  misuser  is  deemed,  at  common  law,  a 
conversion  of  the  property,  for  which  the  hirer  is  held  respon- 
sible to  the  lettor,  to  the  full  extent  of  his  loss.^  And  if  the 
bailee  make  a  sale,  or  other  disposition  of  the  property,  antag- 

1  Story  on  Bailments,  25-27.  "  Bailees  in  general  are  not  responsible  for  losses 
resulting  from  inevitable  accident,  or  from  irresistible  force. ' '  ' '  Bobbery  by  force 
is  deemed  irresistible."  "But  the  loss  by  a  mere  private  or  secret  theft  is  not 
deemed  to  be  irresistible ;  and  whether  it  excuses  the  party  or  not,  depends  upon 
the  nature  of  the  bailment,  and  the  particular  circumstances  of  the  case.  If  the 
proper  degree  of  diligence  has  been  used  by  the  bailee,  and,  notwithstanding 
that,  a  loss  by  such  theft  ensues,  he  is  not  responsible."  (Clarke  v.  Earnshaw,  1 
Gow.  N.  P.  Eep.  30.) 

2  Robinson  v.  Varnell,  IG  Texas,  382;  Sims  v.  Chance,  7  Ibid,  5G1;  IMiller  v. 
Asche,  16  Tex.  295;  Trotter  v.  McCall,  2(5  Miss.  413. 

3  Jones  on  Bailments,  C8,  09,  121;  2  Lord  Eaym.  909,  917;  Mayor  r.  Howard, 
6  Ga.  219;  Hook  v.  Smith,  18  Ala.  338;  Isaac  v.  Clarke,  2  Bulst.  R.  306,  309;  Wil- 
kinson V.  King,  2  Camp.  335;  Loeschman  v.  Machiin,  2  Stark.  311;  Youl  v.  Har- 
bottle,  Peake  R.  49. 


§  352  DAIRY    CONTRACTS.  412 

onlstic  to  the  purposes  of  the  letting,  the  bailment  would  be 
ended,  and  a  suit  could  be  maintained  against  him  by  the  bailor 
for  a  tortious  conversion  thereof,  or  against  the  purchaser,  if  he 
refuse  to  return  the  property  on  demand.^ 

1  Sargent  v.  Gill,  8  3Sr.  H.  325;  Lovejoy  v.  Jones,  10  Foster,  165;  Sanborn  v. 
Coleman,  6  N.  H.  14;  BaUey  v.  Colby,  34  N.  H.  29. 


Part   y. 


EEAL    ESTATE, 


415  LAW    AS    TO    REAL    PROPERTY.  S  353 


CHAPTER  XXXII. 

GEITERAL  PREsrCIPLES  OP  THE  LAW  AS  TO  REAL  PROPERTY. 

§  353.  The  law  of  real  property. 

§  354.  Real  property  is  corporeal  or  incorporeal. 

§  355.  A  fee-simple. 

§  356.  Estates  tail. 

§  357.  .  An  estate  for  life. 

§  358.  An  estate  by  curtesy. 

§  359.  Dower. 

§  360.  Estate  for  years. 

§  361.  An  estate  at  will. 

§  362.  Joint  tenancy. 

§  363.  Tenancy  in  common. 

§  353.  The  law  of  real  property  cannot,  within  the  space 
to  which  a  consideration  of  it  is  allotted  in  this  work,  be  re- 
garded so  fully  as  is  to  be  desired,  and  but  little  can  here  be 
done  more  than  to  glance  at  the  leading  characteristics  of  the 
law,  and,  by  I'eferences,  point  to  such  authorities  as  treat  upon 
the  subject,  and  cover  the  ground  which  we  can  but  enter  upon. 
The  first  great  division  of  property  into  real  and  personal,  now 
so  familiar,  seems  not  to  have  prevailed  until  the  power  of  the 
lords  over  the  soil  and  the  common  populace  was  Aveakcned  by 
the  breaking  up  of  the  feudal  system  in  England.  As  the 
power  of  the  commons  increased,  and  the  legal  rights  of  the 
subject,  as  contradistinguished  from  such  privileges  as  might  be 
accorded  him  by  his  lord,  were  recognized  and  protected  by  the 
power  of  the  law,  the  peculiar  remedies  sought  for  grievances 
created  this  distinction.  Thus,  where  one  had  been  im justly  de- 
prived of  his  lands,  the  remedy  which  he  sought  was  to  recover 
the  possession  of  the  land  itself — the  real  proijerty  y\\nc\\  he  had 
lost ;  but  where  a  chattel,  goods,  or  money  had  been  taken  from 
him,  his  remedy  was  against  the  person  who  had  deprived  him 
of  it,  or  converted  it  to  his  own  use.^ 

1  2  Blackst.  Com.  1-10;  Kaimes'  3(1  Hist.  Tract;  Maine,  Anc.  L.  Chap.  8.     "Of 
all  subjects  of  property,"  says  Lord  Kaimes,  "land  is  that  which  engages  our  af- 


§  354  LAW   AS    TO   REAL    PROPERTY.  416 

This  distinction  has  been  maintained  with  constantly  increas- 
ing rigor,  as  the  requirements  of  advancing  civilization  and  re- 
finement have  made  necessary  ;  but,  though  the  line  of  distinc- 
tion between  these  two  classes  of  property  may,  in  general,  be 
easily  drawn,  cases  will  appear  in  which  property  will  be  real 
or  personal  according  to  the  circumstances  which  affect  it.^ 

§  354.  Real  property  is  corporeal  or  incorporeal. — Cor- 
poreal })roperty  consists  wholly  of  substantial  and  permanent 
subjects,  all  which  may  be  comprehended  under  the  general  de- 
nomination of  land,  which,  in  its  legal  signification,  compre- 
hends the  soil  or  earth,  and  an  indefinite  extent  upwards  and 
downwards,  and,  ordinarily,  whatever  is  erected  or  growing 
upon  it,  as  well  as  whatever  is  contained  within  it,  or  beneath 
the  surface,  such  as  minerals  or  the  like.^ 

Incorporeal  property,  or  hereditaments,  consist  of  rights  and 
profits  arising  from  or  annexed  to  land,  which  are  held  to  be  of 
a  real  nature,  or  such  as  are  said,  in  the  older  law  terms,  to  savor 
of  the  realty. 

The  incorporeal  hereditaments  which  subsist  by  our  law  are 

fections  the  most,  and,  for  this  reason,  the  relation  of  property  respecting  land 
grew  up  much  sooner  to  its  i^resent  firmness  and  stability  than  the  relation  of 
property  respecting  movables."  (Tracts,  p.  9(3;  Commonwealth  i;.  Tewkesbury, 
11  Mete.  55;  Commonwealth  v.  Alger,  7  Cush.  53,  8S;  Cushman  v.  Smith,  34  Me. 
258;  1  Washburn  on  Real  Property,  2.) 

1 1  Washburn  on  Real  Property,  2.  "  Thus,  a  house  or  a  standing  tree  may 
acquire  the  incidents  of  jiersonal  estate,  while  articles  of  a  movable  character 
may  come  to  have  qualities  which  belong  to  the  realty,  by  the  nature  of  the  use 
to  which  they  are  fitted  and  applied."  "  There  is  a  division  of  things  which  ex- 
cludes the  idea  of  separate,  individual  property,  such  as  air,  running  water,  the 
sea,  sea-shore,  etc."    (Ibid.) 

2  1  Washburn  on  Real  Property,  2,  3.  "This  division  rests  upon  the  feudal 
notions  of  property,  whereas  the  distinction  recognized  by  the  civil  law  was 
into  res  mancrpii,  and  res  nee  mancipii,  things  which  might  or  might  not  be 
handled,  or  corporeal  and  incorporeal."  (1  Greenleaf's  Cruise  on  Real  Property, 
46. )  If  a  tree  grows  so  near  the  confines  of  the  land  of  two  adjoining  proprietors 
that  the  roots  extend  into  and  the  limbs  overhang  the  adjoining  close,  yet  the 
property  in  the  tree  belongs  to  the  owner  of  the  land  on  which  the  tree  was 
planted.  Tlje  proprietor  of  the  adjoining  close  may  remove  the  branches  which 
overhang  his  land;  bvit  he  may  not  convert  them,  nor  the  fruit,  tolas  own  use." 
(1  Greenleaf's  Cruise  on  Real  Property,  4G,  Note  3;  Holden  v.  Coates,  1  IM.  & 
Malk.  112;  Masters  v.  Pollie,  2  Roll.  R.  141;  Lyman  v.  Hale,  11  Conn.  177; 
Beardslee  v.  French,  7  Conn.  125. )  But  quere,  whether  he  may  remove  branches 
after  they  have  overhung  his  land  twenty  years.  (Pope  v.  Garland,  2  Y.  & 
Col.  403.) 


417  LAW    AS    TO    HEAL    PROPERTY.  §§  355-6 

fewer  than  those  known  and  recognized  by  the  English  law. 
We  have  no  such  rights  as  advowsons,  tithes,  dignities,  and  fran- 
chises of  the  chase,  incident  to  a  form  of  government  and  con- 
dition of  the  people  different  from  that  existing  in  the  United 
States ;  but,  as  in  the  mother  country,  our  law  recognizes  such 
incorporeal  hereditaments  as  commons,  ways,  easements,  aquatic 
rights,  officers,  franchises,  annuities,  and  rents. ^ 

§  355.  A  fee-simple  is  the  largest  possible  estate  which  a 
man  can  have  in  lands ;  it  is  a  pure  inheritance,  clear  of  any 
qualification  or  condition,  and  it  gives  a  right  of  succession  to 
all  the  heirs  generally.  It  is  an  estate  of  perpetuity,  and  is 
characterized  by  the  absolute  power  of  disposition ;  and  the 
term  "  fee-simple  "  implies  an  entire  right  and  ability  to  do  with 
the  property  whatever  the  holder  of  the  title  may  choose,  sub- 
ject only  to  the  police  regulations,  and  rights  of  eminent  do- 
main ;  the  term  sometimes  used  of  "  fee-simple  absolute  "  is  but 
surplusage  as  to  the  last  word,  and  no  person  is  capable  of  hav- 
ing a  greater  estate  or  interest  in  land  than  the  fee-simple. 

Every  restraint  upon  alienation  is  inconsistent  with  the  nature 
of  a  fee-simple ;  and  if  a  partial  restraint  be  annexed  to  a  fee, 
as  a  condition  not  to  alien  for  a  time,  or  the  like,  or  not  to  a 
particular  person,  it  ceases  to  be  a  fee-simple,  and  becomes  a  fee 
subject  to  a  condition.^ 

§  356.  Estates  tail,  or,  as  sometimes  denominated,  estates  in 
fee-tail,  are  estates  of  inheritance,  which,  instead  of  descending 
to  heirs,  generally  go  to  the  heirs  of  the  donee's  body,  his 
children  born  in  wedlock,  and,  through  them,  his  grandchildren, 

'^  1  Greenleaf's  Cruise  on  Real  Property,  47;  3  Kent's  Com.  403.  A  corporate 
right  to  select  and  acquire  land  for  the  purposes  of  a  charter,  such  as  to  build  a 
railroad,  or  dig  a  canal,  is  an  incorporeal  hereditament.  (Chesapeake  &  Ohio 
R.  R.  Co.  V.  B.  &  O.  R.  R.  Co.  4  Gill  &  Johns.  1.)  So  is  a  permanent  right  to 
flow  lands.  (Harris  v.  Miller,  1  Meigs,  158. ;  So  has  been  held  a  ferry  right. 
(Bowmen  v.  Wather,  2  McLean,  176;  Bridges  v.  Purcell,  1  Dev.  &  Bat.  192;  1 
Washburn  on  Real  Prop.  3-43. ) 

14  Kent's  Com.  5;  1  "Washburn  on  Real  Prop.  57-79;  1  Green.  Cr.  37-88;  1 
Cruise  Dig.  55;  1  Prest.  Est.  431;  1  Wash.  Real  Prop.  G7,  Note  1.  "Though  the 
term  fee-simple  is  applied  in  the  manner  above  stated,  and  Coke  divides  it  into 
fee-simple  absolute,  fee-simple  conditional,  and  fee-simple  qualified,  or  bas(^ee ; 
yet,  in  point  of  accuracy,  it  cannot  be  properly  a  fee-simple  if  it  is  either  Dase, 
conditional,  or  qualified." 

Farm — 27. 


§§  357-8  LAW   AS    TO   KEAL   PROPERTY.  418 

great-grandchildren,  etc.,  in  direct  line,  so  long  as  his  posterity 
endures  in  a  regular  order  and  course  of  descent,  and  upon  the 
death  of  the  first  owner,  without  issue,  the  estate  determines. 
Estates  tail  were  introduced  into  America  with  the  other  parts 
of  the  English  jurisprudence,  and  subsisted  in  full  force  until 
the  Revolution,  which,  in  effect,  by  destroying  all  titles  of  no- 
bility in  the  United  States,  swept  away  the  chief  inducement  to 
the  maintenance  of  this  system  of  estates,  and  estates  in  fee- 
tail  are  now  almost  obsolete  in  this  country,  and  are  in  most  of 
the  States  abolished  by  legislative  enactment.^ 

§  357.  An  estate  for  life  is  a  freehold  estate,  not  of  in- 
heritance, but  which  is  held  by  a  person  during  his  own  life,  or 
the  life  or  lives  of  others.  When  the  measure  of  the  duration 
is  the  life  of  the  holder  of  the  estate,  it  is  called  an  "  estate 
for  the  tenant's  own  life  "  ;  when  the  estate  is  for  the  life  of 
another  person,  it  is  designated  "an  estate ^er*  autre  vie.''  Com- 
mon instances  of  estates  for  lives  are  where  a  grant  is  made  to 
one  expressly  for  his  life,  or  to  a  woman  as  long  as  she  shall  re- 
main a  widow,  or  to  a  man  and  wife  so  long  as  they  shall  both 
live  ;  so  the  reservation  by  a  grantor  of  the  use  and  control  of 
the  granted  premises  during  his  life,  creates  in  him  a  life  estate 
with  all  its  incidents,  and  if  a  dowress  conveys  her  estate  to 
another  the  latter  becomes  thereby  a  tenant  for  life  ^^er  autre 
vie.  The  chief  incidents  of  life  estates  are  a  right  to  take 
reasonable  estovers,  and  freedom  from  injury  by  a  sudden 
termination  or  disturbance  of  the  estate.^ 

§  358.  An  estate  by  curtesy  is  such  as  the  husband  takes 
upon  the  death  of  the  wife,  in  the  real  property  of  which  she 
died  seized,  provided  they  have  had  lawful  issue  born  alive,  and 
possibly  capable  of  inheriting  her  estate  ;  this  estate  is  not  con- 

1 1  Washburn  Real  Prop.  87-100.  "The  doctrine  of  entailment  of  estates  in 
families  was  never  consonant  to  the  genius  of  the  people  of  this  country,  and 
even  in  the  few  States  where  the  form  of  estates  tail  remains,  the  application  of 
it  is  very  rare.  And  the  facility  with  which  even  these  may  be  barred  by  alienat- 
ing them  renders  the  possibility  of  creating  them  of  little  practical  importance, 
though  it  does  not  do  away  with  the  necessity  of  understanding  the  rules  by 
which  such  estates  are  governed."    (4  Kent's  Com.  15.) 

21  Washburn  on  Real  Prop.  101-47;  4  Kent's  Com.  22;  Preston  on  Estates, 
Vol.  1,  20(5-10;  Wright  on  Tenures,  190. 


419  LAW   AS   TO   REAL   PROPERTY.  §  359 

fined,  however,  to  such  property  as  the  wife  has  at  the  time  of 
her  death  the  legal  right  to,  but  also  extends  to  her  equitable 
rights  in  lands.  The  origin  of  this  title  is  not  clear — as  to 
whether  it  is  from  the  English  law  originally,  or  from  the 
ancient  sources  of  the  civil  law ;  but,  whatever  its  origin,  it  has 
become,  and  for  a  long  period  been,  a  Avell  known  estate  at 
common  law ;  but,  although  a  part  of  our  fundamental  law,  re- 
ceived through  the  adoption  of  the  common  law,  its  existence 
in  America  has  been  hampered  with  statute  laws  to  such  an  ex- 
tent as  to  have  lost  many  of  its  attributes  and  characteristics. 

The  essential  requisites  to  entitle  a  husband  to  curtesy  are : 
(narriage,  seizin  of  the  wife  during  coverture,  birth  of  the  child 
alive  during  the  life  of  the  wife,  and  lastly,  death  of  the  wife 
while  the  husband  lives.  Upon  the  death  of  the  wife,  the 
husband  is  at  once  in  as  tenant  by  the  curtesy,  without  having 
resort  to  a  preliminary  form  to  consummate  his  title  to  the 
property.^ 

§  359.  Do"wer  is  a  provision  for  the  wife  which  the  law 
makes  for  her  support,  after  her  husband's  death,  out  of  his  real 
property.  In  America,  though  the  right  of  dower  has  been 
modified,  and  is  not  uniform  through  all  the  States,  it  has  been 
regarded  with  favor.  In  most  of  the  States,  practically — Cali- 
fornia, Louisiana,  and  Indiana  making  the  exceptions — dower  is 
found  to  exist,  in  some  form,  and  substantially,  in  most  of  them, 
like  the  dower  of  the  common  law. 

The  characteristic  feature  of  the  law  of  dower  is  that  the 
wife  takes,  at  once,  a  right   of  dower,  generally  an  undivided 

14  Kent's  Com.  26;  Boiivier's  Law  Die.  Vol  1,  p.  539;  1  Wash.  Real  Prop. 
148-70;  Greenleaf's  Cruise  on  Real  Prop.  Vol.  1,  pp.  152-70.  In  Iowa,  estate 
by  curtesy  is  abolished,  but  the  husband  takes  the  same  estate  in  the  property 
left  by  the  wife  that  she  would  have  had  in  his  by  dower.  No  estate  by  curtesy 
exists  in  Louisiana,  or  in  California,  Indiana,  Michigan,  Dakota,  or  Nevada. 

In  New  York,  it  would  seem  that  the  wife,  by  her  separate  conveyance,  may 
defeat  her  husband's  estate  by  curtesy.  (Thurber  v.  Townsend,  22  N.  Y.  517.) 
The  right  is  expressly  given  by  statute  in  Maine,  Massachusetts,  Rhode  Island, 
Delaware,  Minnesota,  Kentucky,  New  York,  Vermont,  and  Wisconsin. 

The  estate  thus  acquired  by  the  husband  terminates  with  his  life,  and  inas- 
much as  he,  generally,  must  join  liis  wife  in  any  conveyance  which  in  her  life- 
time she  could  make,  it  results  practically  that  curtesy  extends  but  little,  if  at 
all,  beyond  the  property  of  which  the  wife  dies  seized.  (IWash.  Real  Prop. 
141 ;  Heath  v.  White,  5  Conn.  235. ) 


§§  360-1  LAW    AS    TO    REAL    PROPERTY.  420 

one-third  j)art  In  all  such  real  property  as  the  husband  is 
seized  of  during  coverture  ;  this,  right,  however,  is  contingent 
upon  her  surviving  him,  and  may  be  parted  with  by  her  join- 
ing the  husband  in  a  conveyance  of  the  land,  by  Avhich  she 
does  not  part  with  an  estate,  as  she  has  none  while  the  hus- 
band lives,  but  she  "  bars  her  claim  "  of  dower  by  joining  her 
husband  in  a  deed  to  a  third  person.^ 

§  360.  Estate  for  years  Is  an  interest  in  lands,  by  virtue  of 
some  contract  for  the  possession  of  them,  for  a  definite,  limited 
period  of  time.  In  accordance  with  the  Statute  of  Frauds,  a 
tenancy  for  a  term  longer  than  one  year  must  be  by  lease,  in  writ- 
ing, and,  in  some  of  the  States,  be  accompanied  by  the  formali- 
ties of  a  conveyance  of  the  fee-simple.  In  the  following  States, 
the  English  rule  prevails :  Alabama,  Arkansas,  Georgia,  Mary- 
land, Michigan,  Missouri,  New  Hampshire,  New  Jersey,  New 
York,  Ohio,  Pennsylvania,  South  Carolina,  and  Wisconsin, 
while  in  others  the  requirement  is  either  simply  timt  it  may  be 
executed  by  a  party,  or  his  agent  or  attorney,  "  lawfully  author- 
ized." 2 

§  361.  An  estate  at  •will  is  where  one  man  lets  land  to  an- 
other to  hold  at  the  will  of  the  lessor,  as  appears  from  the 
definitions  given  by  the  earlier  text-writers,  and  recognized  by 
Chancellor  Kent ;  ^  and  by  Littleton  It  is  said  that  such  a  ten- 
ancy may  be  terminated  instanter,  by  a  demand  of  the  posses- 
sion.^ But  the  more  common  definition  is  that  by  Bouvier : 
"  An  estate  in  lands  which  the  tenant  has  by  entry  made  thereon 
under  a  demise  to  hold  during  the  joint  wills  of  the  parties  to 
the  same."  ^ 

^  Greenleaf  s  Cruise  on  Real  Prop.  Vol.  1, 170;  4  Kent's  Com.  34;  1  Wash.  Real 
Prop.  169;  2  Black.  Com.  Chap.  8;  Coke  upon  Littleton,  30-41;  Lambert  on 
Dower. 

2  Bouv.  Law  Die.  540;  Coke  upon  Littleton,  436,  546;  Washburn  on  Real 
Prop.  Vol.  1,  393;  Browne  on  Frauds,  503-31;  Wallace  v.  McCuUough,  1  Rich. 
Eq.  (S.  C.)  417;  Gardner  v.  Gardner,  6  Cush.  117. 

A  stipulation  in  a  lease  for  years  is  a  valid  one  that  the  crops  shall  be  the 
lessor's  until  the  rent  is  paid,  binding,  not  only  the  parties  to  the  contract,  but 
third  parties  also.   (Coooper  v.  Cole,  38  Vern.  191;  Smith  v.  Atkins,  18  Vern.  461.) 

3  4  Kent's  Com.  111. 

^  Litt.  Sec.  68;  Doe  v.  McKaeg,  10  Barn.  &  Cress.  721. 
5  1  Bouv.  Law  Die.  540;  1  Wash.  Real  Prop.  370. 


421  LAW    AS    TO   REAL    PROPERTY.  §  362 

An  estate  by  sufferance  is  where  a  tenant  has  come  right- 
fully into  possession  of  lands  by  permission  of  the  owner,  and 
continues  to  occupy  the  same  after  the  time  for  which,  by 
such  permission,  he  has  a  right  to  hold  the  same.  He  comes 
in  by  right,  and  holds  over  without  right.  He  holds  without 
right,  but  yet  he  is  not  a  trespasser.  He  has  a  mere  naked 
possession,  without  being  entitled  to  notice  to  quit.^ 

§  362.  A  joint  tenancy  is  Avhere  several  persons  have  any 
subject  of  property  jointly  between  them  in  equal  shares  by 
purchase.  A  joint  tenancy  can  only  be  created  by  purchase  or 
act  of  the  parties,  and  not  by  descent  or  operation  of  law. 
It  must,  moreover,  be  created  by  one  and  the  same  act,  deed,  or 
devise,  and  joint  disusors  may  become  joint  tenants. 

The  most  peculiar  and  distinguishing  feature  of  this  estate  is 
the  jus  accrescendi,  or  right  of  survivorship,  by  which,  on  the 
death  of  one  joint  tenant,  his  title  vests  in  the  person  who  held 
with  and  who  survives  him. 

By  the  common  law  in  England,  if  an  estate  is'conveyed  to 
two  or  more  persons  without  indicating  how  the  same  is  to  be 
held,  it  will  be  understood  to  bo  a  joint  tenancy,  but  the  policy 
of  American  laAv  is  opposed  to  the  notion  of  survivorship,  and 
therefore  regards  such  estates  as  tenancies  in  common.  In 
many  of  the  States  joint  tenancies  are  abolished  by  statute,  ex- 
cept in  special  trusts  wherein  the  trustees  have  no  personal  in- 
terest, and  the  tendency  of  the  law  in  the  United  States  is  to 
deprecate  any  recognition  of  the  estate  of  joint  tenancy  by 
making  it  a  tenancy  in  common.^ 

1 1  Wash.  Real  Prop.  533  et  seq. ;  2  Black.  Com.  150;  Smith's  Landlord  and 
Tenant,  217;  Doe  v.  Hull,  2  D.  &  R.  38;  Russell  v.  Fabyan,  34  K  H.  218;  Uridias 
r.  Morrill,  25  Cal.  35;  1  Boiiv.  Law  Die.  540.  "If  the  tenant  has  left  the  house, 
the  landlord  may  break  in  the  doors."  "And  the  modern  rule  seems  to  be 
that  the  landlord  may  use  force  to  regain  possession,  subject  only  to  indictment 
if  any  injury  is  committed  against  the  public  peace." 

2  Bl.  Com.  Book  2,  Chap.  12;  Kent's  Com.  Sec.  64;  Coke  upon  Litt.  17!)a,  1886; 
Greenleaf's  Cruise  on  Real  Prop.  Vol.  1,  828;  1  Wash.  Real  Prop.  552-60;  Wil- 
liams' Real  Prop.  112;  1  Bl.  Com.  180;  Bouv.  Law  Die.  "Estate  of  Joint  Ten- 
ancy." In  the  following  States,  every  estate  granted  or  devised  to  two  or 
more  persons  in  their  own  right  is  construed  to  be  a  tenancy  in  common,  unless 
expressly  provided,  or  by  manifest  implication  declared,  to  be  a  joint  tenancy, 
namely :  Massachusetts,  Maine,  Vermont,  Xew  Hampshire,  Rhode  Island,  New 
Jersey,  New  York,  Michigan,  Minnesota,  Wisconsin,  Illinois,  Delaware,  Arkan- 


§  363  LAW  AS  TO  REAL  PROPERTY.  422 

§  363.  A  tenancy  in  common  is  where  two  or  more  hold 
possession  of  real  property  by  unity  of  possession  ;  they  may 
hold  by  several  and  distinct  titles,  or  by  title  derived  at  the  same 
time  by  deed  or  descent.  In  this  respect,  the  American  differs 
from  the  English  law.  This  tenancy,  by  the  common  law,  is 
recognized  as  being  created  by  deed  or  will,  or  by  change  of 
title  from  a  joint  tenancy,  or  it  may  occur  by  operation  of  law. 
In  the  United  States,  it  may  be  created  by  descent,  as  by  deed 
or  will ;  and  v»rhether  the  estate  be  created  by  act  of  the  party, 
or  by  descent,  in  either  case  tenants  in  common  are  deemed  to 
have  several  and  distinct  freeholds,  for  that  circumstance  is  a 
leading  characteristic  of  tenancy  in  common. 

Each  owner,  in  respect  to  his  share  or  interest  in  the  property, 
has  all  the  rights,  except  that  of  sole  possession,  which  the 
owner  of  title  in  fee-simple  possesses ;  he  may  convey  his  inter- 
est to  a  stranger  without  consulting  his  cotenant,  and  if  he  pur- 
poses a  conveyance  to  his  cotenant,  it  must  be  by  deed  as  to  a 
stranger  to  the  title  ;  to  the  extent  of  his  interest  he  holds  the 
title  free  and  clear  from  interference  from  his  cotenant,  and  may 
manage  his  part  of  the  estate  as  he  pleases,  so  long  as  he  does 
not  injure  his  cotenant ;  and  even  if  he  join  with  his  cotenant  in 
a  deed  or  lease,  the  instrument  is  deemed  to  be  the  separate 
indenture  of  each  of  the  tenants  in  common. 

Either  tenant  in  common  may  terminate  the  relation  by  an 
action  for  partition,  but,  inasmuch  as  the  condition  for  an  estate 
in  severalty  is  in  each  instance  dependent  upon  all  the  cotenants 
joining  in  making  it,  all  the  tenants  in  common  must  be  brought 
before  the  Court  and  made  parties  to  the  suit ;  and  so  also  of  volun- 
tary division  of  property  thus  held  in  common,  all  the  factions 
represented  by  the  entire  tenancy  in  common  must  be  joined, 
to  make  as  to  each  parcel  a  unit  of  the  entire  title,  or  the  par- 
tition is  invalid.^ 

sas,  Mississippi,  Missouri,  Califomi;i,  Indiana,  Iowa,  Maryland,  Oregon,  and 
Kansas,  the  exceptions  generally  being  where  estates  are  vested  in  trustees  or 
executors,  and  in  the  statutes  of  these  States,  estates  held  by  two  or  more  as 
executors  or  trustees,  and  estates  where,  for  the  purpose  of  a  declared  trust, 
the  intention  of  the  donor  is  exiiresscd  that  the  part  of  one  donee,  dying,  shall 
go  to  the  survivors,  are  expressly  excepted,  making  by  the  exception  the  rule 
more  strong. 

1  Wash.  Real  Prop.  41G-22;  4  Kent's  Com.  307-73;  2  Bl.  Com.  Chap.  12;  Coke  on 
Litt.  1886-200&;  Green.  Cr.  on  Real  Prop.  Note  1,  pp.  868-88.    If  one  tenant  in 


423  LAW    AS   TO   REAL   PROPERTY.  §  363 

common  occupies  and  cultivates  and  derives  profit  from  more  than  his  sliarc 
of  the  estate,  he  may  be  held  accountable  for  such  net  excess  of  profits.  (Holt 
V.  Robertson,  McMullen,  Chap.  475;  Hancock  v.  Day,  Ibid,  298;  Thompson  v. 
Bostick,  Ibid,  75. ) 

The  law,  independent  of  statute,  as  to  making  repairs  upon  common  jiroperty 
if  either  cotenant  is  unwilling  to  join  in  the  same,  seems  to  be  this :  One  tenant 
in  common  cannot  go  on  and  make  improvements  or  repairs  upon  the  common 
property,  and  make  his  cotenant  liable  for  any  part  of  the  same.  (1  Wash. 
Real  Prop.  421;  Crest  v.  Jacks,  3  Watts,  239;  Taylor  v.  Baldwin,  10  Barb.  582; 
Stevens  v.  Thompson,  17  N.  H.  109.) 

It  has  been  lately  held  that  a  tenant  in  common  cannot,  by  prescription, 
obtain  a  right  of  way  over  the  common  property  to  his  lands  held  in  severalty. 
(Crippen  v.  Morse,  49  K  Y.  63.) 


364  RIGHT    OF    WAY.  424 


CHAPTER   XXXIII. 

RIGHT    OF    WAY. 

§  364.  Easements  and  servitudes. 

§  365.  General  characteristics  of  easements. 

§  366.  Easements  may  be  either  positive  or  negative. 

§  367.  Right  of  land-owner  in  soil  of  road. 

§  368.  Ways  are  ajipendaut  or  api^urteuant,  when. 

§  369.  A  right  of  way  may  be  in  gross. 

§  370.  A  way  of  necessity. 

§  371.  Presumptions  as  to  way  of  necessity. 

§  372.  Meaning  of  the  words  "  a  way  of  necessity." 

§  373.  A  way  by  grant. 

§  374.  Implied  grant  of  way  when  land  is  sold. 

§  375.  What  use  of  land  implied  by  grant  of  way. 

§  376.  Repairs  of  road  over  another's  land. 

§  377.  A  way  by  prescription  or  user. 

§  378.  Statute  of  Limitations  the  raeasure  of  time  of  user. 

§  364.  Easements  and  servitudes. — An  easement  is  the 
right  of  making  use  of  the  real  property  of  others,  by  the 
})ublic  or  individuals,  for  a  precise  and  definite  purpose,  not 
inconsistent  with  the  general  right  of  property  in  the  owner. 
The  owner  of  the  fee  is  not  affected  in  his  rights  other  than  so 
far  as  is  requisite  for  the  protection  of  the  holder  of  the  ease- 
ment, or,  as  it  is  sometimes  termed,  servitude.  The  existence 
of  two  distinct  estates  is  implied  in  the  existence  of  an  ease- 
ment :  the  one  in  favor,  or  for  the  benefit  of  which  it  exists, 
which  is  usually  denominated  the  dominant^  and  the  other,  over 
or  upon  which  it  is  exercised,  called  the  servient.^  From  the 
very  nature  of  things  there  is  an  antagonism  between  these 
two,  and  when  both  estates  pass  into  one  person  the  easement 
is  at  once  extinguished.^ 

1 1  Bouv.  Law  Die.  510;  3  Kent's  Com.  418-19;  2  Wash.  Real  Prop.  25;  Wasli- 
burn  on  Easements  and  Servitudes,  4;  Ritger  v.  Parker,  8  Gush.  145. 

2  "An  easement  or  servitude  is  a  right  which  one  proprietor  has  to  some 
profit,  benefit,  or  lawful  use  out  of  or  over  the  estate  of  another  proprietor." 
(Ritger  v.  Parker,  8  Gush.  145;  Brakelee  v.  Sharp,  1  Stoct.  9;  Doe  v.  Wood,  2 
Barn.  &  Aid.  724;  Denton  v.  Liddell,  23  N.  J.  Eq.  64.) 


425  RIGHT  OF   WAY.  §§  365-7 

§  365.  General  characteristics  of  easements. — Easements 
are  as  various  as  the  exigencies  of  domestic  convenience,  or  the 
l^urposes  to  which  real  property  can  be  applied.  All  easements 
must  originate  in  a  grant  or  agreement,  either  express  or 
implied,  by  the  owner  of  the  servient  estate  to  the  recipient 
of  the  dominant.  The  evidence  of  their  existence,  by  the 
common  law,  may  be  by  proof  of  the  agreement  itself,  or  by 
prescription,  requiring  actual  and  uninterrupted  enjoyment, 
immemorially,  or  for  upwards  of  the  period  of  time  prescribed 
by  the  Statute  of  Limitations  for  bringing  actions  for  recovery 
of  lands. ^ 

§  366.  Easements  may  be  either  positive  or  negative, 

that  is  to  say,  they  may  authorize  the  commission  of  acts  actu- 
ally injurious  to  the  servient  estate  ;  as  a  right  of  way,  or  nega- 
tive, being  only  consequently  injurious,  as  preventing  the  owner 
of  the  servient  estate  from  so  using  his  land,  by  building  on  it 
or  otherwise,  to  the  obstruction  of  light  or  air  from  the  dom- 
inant tenement.^ 

§  367.  Right  of  land-owner  in  soil  of  road. — Right  of 
way,  if  not  first   in  importance  among  rural  servitudes  upon 

1  "  In  respect  to  the  length  of  time  during  which  there  must  be  an  uninter- 
rupted adverse  user  and  enjoyment  by  the  owner  of  one  piece  of  land,  of  what 
he  claims  as  an  easement  in  that  of  another,  in  order  to  establish  such  a  claim, 
it  may  be  stated,  as  a  general  proposition,  that  it  is  commensurate  with  the  time 
within  which,  by  the  local  law,  the  right  of  making  an  entry  into  lands  or  bring- 
ing ejectment  is  limited."     (2  Wash.  Eeal  Prop.  49.) 

Gale  &  Wliatman,  Ease.  9i;  Daniel  v.  jSTorth,  11  East,  370.  But  to  constitute 
such  an  adverse  enjoyment  of  an  easement,  it  must  be  had  while  there  is  some 
one  to  whom  such  use  is  adverse.  (Hoy  «.  Stewart,  2  Watts,  327;  Hurlbut  r. 
Leonard,  Brayt.  201;  Manning  v.  Smith,  6  Conn.  289;  Felton  v.  Simpson,  11  Ind. 
84.)  A  son  occupied,  by  permission,  for  eighteen  years,  a  farm  belonging  to  his 
father's  estate,  and  then  purchased  the  farm.  During  all  these  eighteen  years, 
and  for  more  than  two  years  next  following,  he  used  a  well  on  an  adjoining 
farm,  also  belonging  to  his  father's  estate;  whereupon  a  purchaser  of  the  latter 
farm  forbade  the  son  to  use  the  well.  Held,  that  the  son  had  acquired  no  title 
to  the  use  of  the  well;  his  use  of  it  had  not  been  adverse  to  the  servient  estate. 
(Stevens  v.  Dennent,  51  N.  H.  324.) 

2  Tudor  Lead.  Cas.  107;  2  Wash.  Eeal  Prop.  2(5;  Wolf  v.  Frost,  4  Sandf.  Ch. 
71,  89;  Gale  &  Whatl.  Ease.  52;  Grant  v.  Chase,  17  Mass.  443-7;  Seymour  v. 
Lewis,  13  N.  J.  450. 

"A  parol  license  to  enter  on  lands  will  excuse  what  otherwise  would  be  a 
trespass."     (Owens  v.  Lewis,  66  Ind.  488.) 

"A  license  confers  only  a  privilege,  and  does  not  pass  an  estate,  and  may  be 


§  367  RIGHT   OF   WAY,  426 

lands,  is,  perhaps,  the  most  familiar  and  most  often  called  into 
notice.  Highways  are  regarded  as  easements;  the  public,  by 
their  location,  acquires  a  right  of  way  over  roads,  but  the  title 
to  the  soil  often,  if  not  as  a  general  rule,  remains  with  the 
original  owner.  The  use  may  be  so  entire  as  to  wholly  deprive 
the  owner  of  the  fee  of  a  beneficial  estate,  apart  from  such  as 
he  may  have  as  a  part  of  the  body  politic ;  but,  should  the  high- 
way be  abandoned,  his  original  estate  stands  intact  and  released 
from  the  servitude,  and  to  this  circumstance  is  to  be  ascribed 
the  popular  custom  of  describing  lands  abutting  upon  a  public 
road,  in  conveyances,  as  running  to  the  center  of  the  highway.^ 
The  public  have  an  easement  to  the  extent  of  the  use  requi- 
site for  the  purposes  of  the  road,  may  use  the  soil,  timber,  and 
stone  found  on  the  land,  to  keep  in  repair  the  road,  but  the 
owner  of  the  fee  is  entitled  to  all  mines,  quarries,  springs  of 
water,  and  eartli  for  every  purpose  not  incompatible  with  the 
public  use  of  the  land  as  a  road.^ 

revoked  or  countermanded  at  any  time  by  the  licenser."  (Owens  v.  Lewis,  G6 
Ind.  488.) 

1  Morgan  v.  Stone,  3  Gray,  319;  Hancock  v.  Wentworth,  5  Mete.  44G;  Jerman 
V.  Mathews,  2  Bail.  271.  "This  incorporeal  hereditament  is  a  right  of  i^assage 
over  another  man's  ground.  It  may  arise  either  by  grant  of  the  owner  of  the 
soil,  or  by  prescription  which  su^iposes  a  grant,  or  from  necessity."  (3  Kent's 
Com.  420;  Derickson  w.  Springer,  5  Harring.  21.) 

"The  extent  to  which  the  owner  of  agricultural  lands,  subject  to  a  right  of 
way  by  the  owners  of  the  same  description  of  lands,  may  obstruct  or  interfere 
with  the  use  of  them  by  gates  or  bars,  is  to  be  determined  by  the  necessity  of 
the  erection  of  such  obstructions  for  the  isrotection  of  his  other  property,  and 
in  every  case  the  question  is  for  the  jury."     (Huson  v.  Young,  4  Lans.  63.) 

^  ' '  Highways  are  regarded  as  easements.  The  public  acquire,  by  their  loca- 
tion, a  right  of  way,  with  the  powers  and  privileges  incident  to  that  right,  such 
as  digging  the  soil,  using  the  timber  and  other  materials  found  within  the  limits 
of  the  road,  in  a  reasonable  manner,  for  the  purjiose  of  making  and  repairing  the 
road-bed  and  bridges.  The  former  iiropi'ietor  of  the  soil  still  retains  his  exclusive 
right  to  all  the  mines,  quarries,  springs  of  water,  timber,  and  earth,  for  every 
purpose  incompatible  with  the  public  right  of  way.  The  person  in  whom  is  the 
fee  of  the  road  may  maintain  trespass,  ejectment,  or  waste  in  respect  to  the 
same,  and  upon  the  discontinuance  or  abandonment  of  the  right  of  way,  the 
entire  and  exclusive  proi^erty  and  right  of  enjoyment  revest  in  the  proprietor 
of  the  soil."  (Washburn  on  Easements,  159;  Jackson  v.  Hathaway,  15  Johns. 
447;  Westbrook  v.  North,  2  Me.  179;  Robbins  v.  Boorman,  1  Pick.  122;  Adams  v. 
Emer.son,  6  Pick.  57 ;  Harbock  v.  Boston,  10  Cush.  259. ) 

"  A  railroad  has  no  right  to  use  a  common  road  without  legislative  authority, 
which  has  been  vacated.  The  right  to  the  soil  remained  in  the  owner,  and  on 
the  vacation  of  the  road  reverts  to  him."  (Philips  v.  R.  11.  Co.  Supreme  Court 
Penn.  May  10,  1875. ) 


427  RIGHT  OF   WAY.  §§  368-70 

§  368.  Ways  are  appendant  or  appurtenant  when  they 
are  incident  to  an  estate.  They  must  inhere  in  the  land,  concern 
the  premises,  and  be  essentially  necessary  to  the  enjoyment  of 
the  dominant  estate  ;  they  are,  in  effect,  covenants  running  with 
the  land,  both  that  over  which  the  way  extends  and  the  prem- 
ises to  which  the  way  is  requisite. 

A  grant  of  way  over  premises  will  be  construed  to  be  a 
general  way  for  all  purposes,  unless,  from  the  grant  or  use, 
there  appear  restrictive  terms  or  special  use;  and  where  a 
special  use  is  granted,  the  recipient  may  be  restricted  to  that 
use,  and  compelled  to  maintain  such  gates  or  bars  as  will  confine 
him  to  the  special  grant.^ 

§  369.  A  right  of  way  may  be  in  gross,  that  is,  attached 
to  the  person  using  it  or  to  whom  it  is  granted  alone,  or  it  may 
be  appurtenant  to  land  to  which  it  leads,  and  unless  expressly 
shown  to  be  a  personal  privilege  to  him  to  whom  it  has  been 
granted,  it  will  be  presumed  to  be  appurtenant  to  the  dominant 
estate,  and  pass  to  the  grantee  thereof  by  deed.^ 

§  370.  A  vray  of  necessity  is  where  a  man  sells  land,  to 
reach  which,  from  the  public  highway  a  passage  must  be  had 
over  the  land  of  the  vendor.     In  selling  real  pi'operty  the  law 

1  3 Kent's  Com.  420.  "When  a  right  of  way  is  appedient  or  annexed  to  an 
estate,  it  may  pass  by  assignment  when  the  land  is  sold  to  which  it  was  appur- 
tenant." Child  V.  Campbell,  5  Selden,  246;  Seviles  v.  Hastings,  24  Barb.  44; 
Huttemneier  v.  Albro,  18  IST.  Y.  48 ;  Staples  v.  Haydon,  G  Mod.  3,  in  which  it  was 
said :  "If  one  seized  of  lot  A  and  lot  B,  and  he  used  a  way  from  lot  B  to  mill, 
or  to  a  river,  and  he  sells  lot  A,  with  all  ways  and  easements,  the  grantee  shall 
have  the  same  privilege  of  passing  over  lot  B  which  the  grantor  had."  (Wash. 
Ease.  8,  9.) 

And  where  an  easement  has  been  granted  by  a  deed-poll,  which  also  provides 
for  the  performance  by  the  grantees  of  a  certain  act,  they  will,  if  they  accept 
the  deed,  be  bound  by  the  stipulation  therein  contained;  and  a  subsequent  sale 
of  the  land  will  not  relieve  them  of  the  obligation,  although  tlie  deed  contain 
no  mention  of  any  such  agreement  on  their  part.  (Elting  v.  Clinton  ]\Iills  Co. 
'Mi  Conn.  296.)  If  such  agreement  is  a  contract  running  with  the  land,  it  passes 
by  the  sale  of  the  land  to  the  purchaser.  If  it  is  a  personal  contract,  not  run- 
ning with  the  land,  it  is  a  chose  in  action  vesting  in  the  grantor,  and  subject, 
like  other  choses  in  action,  to  assignment.     (Ibid. ) 

2  2  Kent's  Com.  420.  "If  it  be  a  right  of  way  in  gross,  or  a  mere  personal 
right,  it  cannot  be  assigned  to  any  other  person,  nor  transmitted  by  descent. 
It  dies  with  the  person,  and  it  is  so  exclusively  personal  that  the  owner  of  the 
right  cannot  take  another  person  in  company  with  him."  (1  Koll.  Abr.  391; 
Wash.  Ease.  8. ) 


§  371  RIGHT    OF    WAY.  428 

presumes  the  parties  to  have  had  in  view,  in  making  the  con- 
tract, the  rational  enjoyment  of  the  premises  by  the  vendee  ;  and 
in  selling  the  land  the  original  owner  is  presumed  to  have 
known,  and  had  in  view,  the  circumstance  that  he  held  the 
power  of  such  enjoyment  from  his  purchaser  by  being  alone  able 
to  give  him  access  to  the  road,  which  enables  him  to  enjoy  the 
property  purchased.  Hence,  the  law  presumes  a  grant  by  the 
vendor  from  the  land  sold  over  his  premises  to  the  highway.^ 

§  371.  Presumptions  as  to  -way  of  necessity. — The  pre- 
sumptions of  the  knowledge  of  the  owner  of  the  land  that  a 
way  is  being  used,  and  of  the  necessities  of  the  case,  are  based 
only  upon  such  an  absolute  necessity  as  to  preclude  all  doubt 
of  the  minds  of  the  contracting  parties  having  met  and  agreed 
upon  this  grant  of  right  of  way,  and  therefore  a  mere  con- 
venience is  not  the  test — the  necessity  must  be  absolute  ;  and  it 
has  even  been  held  that  where  land  conveyed  was  surrounded 
on  all  sides  but  one  by  water,  and  there  was  no  access  to  it  by 
land,  except  over  the  grantor's  land,  such  a  necessity  was  not 
presented  as  to  raise  an  implied  grant  of  a  right  of  way  over 
the  land  of  the  vendor,  and  that  mere  convenience  was  not  the 
test.^  But  on  the  other  hand  it  has  appeared  that  the  Courts 
have  been  sometimes  inclined  to  regard  this  matter  of  a  way 
by  necessity  from  a  standpoint  and  premises  characterized  by 
greater  liberality,  and  to  hold  that  the  necessity  need  not  be 

1 3  Kent's  Com.  420.  "  A  right  of  way  may  arise  from  the  necessity  in  several 
respects.  Thus,  if  a  man  sells  land  to  another,  which  is  wholly  surrounded  by 
his  own  land,  in  this  case  the  purchaser  is  entitled  to  a  right  of  way  over  the 
other's  ground  to  arrive  at  his  own  land.  The  way  is  a  necessary  incident  to  the 
grant,  and  without  which  the  grant  would  be  useless."  (Clarke  v.  Cogge,  Cro. 
Jac.  170;  Turnbull  v.  Elvers,  3  McCord,  131.)  All  the  authorities  support  the 
doctrine,  says  Mr.  Woolrych,  in  his  treatise  on  the  Law  of  "Ways,  v>.  21,  that  in  the 
case  of  a  grant  of  land  without  reservation  of  any  way,  a  way  of  necessity  will 
pass  as  incident  to  the  grant.  (Howton  v.  Frearson,  8  TermEep.  50.)  "  The 
general  rule  is,  that  when  a  thing  is  granted,  everything  is  granted  by  which  the 
grantee  may  have  and  enjoy  such  use."    (3  Kent's  Com.  421;  Co.  Litt.  56.) 

2  Turnbull  w.  Elvers,  3  McCord,  131;  Cooper?;.  Maupin,  G  Mo.  624;  Anderson 
V.  Buchannan,  8  Ind.  132.  Chancellor  Kent,  however,  gives  the  rule  as  follows : 
"The  general  rule  is,  that  when  the  use  of  a  thing  is  granted,  everything  is 
granted  by  which  the  grantee  may  liave  and  enjoy  such  use."  (3  Kent's  Com. 
421.)  But  the  general  tenor  of  decisions  is  to  the  effect  that  the  necessity  must 
be  real  and  well  established  in  order  to  create  a  right  of  way.  Convenience 
alone  is  not  sufficient  to  raise  the  implication  of  a  right  of  way.  (Valley  Tails 
Co.  V.  Dolan,  9  E.  I.  489;  Serevene  v.  Gregorie,  8  Eich.  158.) 


429  RIGHT   OF   WAY.  §  372 

absolute  and  irresistible,  but  such  as  sensible  persons  might 
reasonably  be  deemed  to  have  considered  in  making  a  purchase, 
and  that  a  mere  inconvenience  may  be  so  great  as  to  raise  such 
an  implied  grant  of  right  of  way.^ 

§  372.  Meaning  of  the  words  "  a  way  of  necessity." — 

A  way  of  necessity  is  not  precisely  what  the  words  might 
seem  to  import,  giving  to  them  their  ordinary  signification. 
It  must  not  be  assumed  that  because  one  tract  of  land  is 
separated  by  another  from  the  highway,  that  the  owner  of 
the  former  has  a  right  of  way  thence  to  the  road  over  the 
intervening  land ;  and  it  is  not  this  general  necessity  for  commu- 
nication with  the  main  thoroughfare  which  has  given  rise  to  the 
designatory  expression,  "  a  way  of  necessity."  It  is  where  a 
sale  of  land  is  made  by  the  owner  of  that  which  so  intervenes 
and  separates  from  the  highway  the  tract  sold,  that  the  law  pre- 
sumes the  grant  of  that  easement  with  which  alone  the  grant 
of  the  land  is  of  value  to  the  grantee.  The  right  of  way  when 
claimed  by  necessity  is  founded  entirely  upon  grant,  and  derives 
its  force  and  vigor  from  it.  It  is  either  created  by  express 
words  or  by  operation  of  law  as  incident  to  the  grant,  so  that  in 
both  cases  the  arrant  is  the  foundation  of  the  title.  There  can- 
not  legally  exist  a  general  way  of  necessity  without  reference 
to  the  manner  whereby  the  land  over  which  the  way  is  claimed 
became  charged  with  the  burden,  and  it  hence  results  that 
there  can  be  established  no  way  of  necessity  without  showing 
that  by  grant,  actually  made  by  the  owner  of  the  intervening 
lands,  or  such  as  the  law  presumes  him  to  have  made  when  he  sold 
the  tract,  removed  and  separated  from  the  highway  he  granted 
the  way  to  and  from  the  land  sold,'^  except  where  the  owner  of 

iWashbvim  on  Easements,  163;  Lawson  r.  Pavers,  2  McCord,  445;  Morris  ?-. 
Edginton,  3  Taunt.  230.  Whether  a  man  who  himself  owns  the  land  over  whicli 
a  way  of  necessity  in  favor  of  other  land  which  he  owns  exists,  loses  his  right 
by  necessity  to  the  second  piece  by  selling  the  first,  is  not  free  from  question,  if 
in  the  sale  he  is  so  improvident  as  to  neglect  to  reserve  a  right  of  way.  (3 
Kent's  Com.  422.)  But  it  would  appear  that  the  cu-cumstances  creating  the 
necessity  would  raise  an  implication  of  the  grantor  having  reserved  a  way,  as 
much  as  it  would  one  of  a  grant  of  way  having  been  made,  which  is  the  sole 
basis  on  which  stands  the  way  by  necessity.  (3  Kent's  Com.  422-3;  Holmes  v. 
Goring  et  al.  2  Bing.  76;  CoUins  v.  Prentice,  15  Conn.  39;  MUler  v.  Lapham,  44 
Vt.  41G.) 

2  Wild  V.  Deig,  43  Ind.  455;  2  Wash.  Eeal  Prop.  282,  3d  Ed;  3  Kent's  Com.  423; 
2  Bl.  Com.  36;  Stewart  v.  Hartman,  46  Ind.  332.     "A  way  of  necessity  derives 


§§  373-4  EIGHT    OF    WAY.  480 

both  tracts  sells  that  removed  from  the  road,  m  which  case  a 
reservation  of  way  may  be  presumed. 

§  373.  A  -way  by  grant  is  where  an  easement  of  this 
character  is  conveyed  by  the  owner  of  the  servient  to  him 
who  thereby  becomes  the  holder  of  the  dominant  estate. 

As  a  general  proposition,  a  grant  of  an  estate  Avith  "  ways 
heretofore  used,"  or  "  ways  in  use,"  or  the  like  general  terms 
of  description  as  to  right  of  way,  will  pass  to  the  grantee  all 
ways  in  actual  use  at  the  time  of  the  grant.  And  where  a 
grant  of  riglit  of  way  is  made  without  any  precise  description 
of  the  route,  it  will  become  fixed  by  use  and  acts  of  acqui- 
escence by  the  parties  in  interest.^ 

§  374.  Implied  grant  of  way  by  sale  of  land. — A  grant 
of  right  of  way  is  implied  by  sale  of  lands  bounded  upon 
streets  or  roads,  or  laid  down  in  maps  made  at  the  instance 
of  the  owner  of  the  fee  in  the  lands  over  which  the  roads  or 
streets  run.^ 

It  has  been  questioned  how  far  the  grant  of  a  way  for 
agricultural  purposes  is  a  general  right  of  way,  and  from  the 
general  tenor  of  decisions  it  appears  to  be  one  of  a  limited 
and  qualified  character ;  and  if  from  the  terms  of  the  grant  it 
is  apparent  that  the  grant  is  for  a  specified  purpose,  the  use 
of  it  may  be  confined  to  that  purpose.'^ 

its  origin  from  a  grant,  and  cannot  legally  exist  where  neither  the  party  claim- 
ing the  way,  nor  the  owner  of  the  land  over  which  it  is  claimed,  nor  any  one 
under  whom  they,  or  either  of  them,  claim,  was  ever  seized  of  both  tracts  of 
land." 

1  Parol  evidence  is  competent  to  prove  the  existence  of  an  easement,  and 
especially  to  pomt  the  words  of  the  deed  to  the  object  they  are  intended  to 
designate  and  grant.  (Brown  v.  Berry,  9  Coldw.  98;  Bump  v.  Laner,  37  Md.  621. ) 
A  deed  conveying  land  with  right  of  access  to  it  "over  other  land  of  the 
grantor,  as  heretofore  used,"  imports  only  an  actual  use.  (Bigelow  C.  Co.  r. 
Clinton,  108  Mass.  70;  Fonda  v.  Borst,  2  Abb.  [F.  Y.]  App.  155.) 

2  The  purchaser  of  rural  ijroperty,  under  a  deed  in  which  the  grantor  bounds 
the  premises  conveyed  by  a  road  or  proposed  road  over  land  retained  by  him,  is 
entitled  to  a  right  of  way  over  such  land.  (Fonda  v.  Borst,  2  Abb.  [N.  Y.']  App. 
Dec.  155;  Washburn  on  Easements,  170;  James  v.  Jenkins,  34  Md.  1;  Bump  r. 
Laner,  37  Md.  G21.) 

"Where  one,  in  a  plan  of  lots,  laid  out  an  alley  between  the  rear  of  two  tiers 
of  lots,  and  conveyed  the  lots  as  bounding  on  the  alley  to  diiferent  persons : 
Hehl,  that  the  alley  could  not  be  abandoned  without  the  consent  of  all  the 
lot-holders.     (McKee  v.  Perchment,  69  Penn.  Stats.  342.) 

3  Cowling  V.  Higginson,  4  Mees.  &  W.  245,  in  which  a  right  of  way  for  agri- 


431  RIGHT   OF   WAY.  §  375 

§  375.   What  use  of  land  is  implied  by  grant  of  way. — 

The  grant  of  a  right  of  Avay  carries  with  it  all  rights  to  the 
use  of  the  soil  which  are  properly  incident  to  the  free  exer- 
cise and  enjoyment  of  the  right  granted  or  reserved ;  but,  on 
the  other  hand,  the  owner  of  the  land  over  which  the  right 
of  way  exists  may  make  any  and  all  use  of  the  soil,  and  all 
profits  which  can  be  derived  from  it,  consistently  with  the  en- 
joyment of  the  easement.  He  may  maintain  ejectment  to 
recover  the  land  from  a  stranger.  He  may  dig  away  the 
soil,  sink  a  drain  under  the  roadway,  take  away  stone,  or  do 
any  other  thing  which,  as  owner  of  the  fee,  he  might  have 
done  if  the  right  of  way  had  not  been  granted,  so  long  as 
the  dominant  right  of  easement  is  not  affected.^ 

cultural  i)iu'i30ses  was  held  not  to  be  a  right  to  use  the  way  to  haul  coal  from  a 
coal-bed.  Jackson  i\  Stacey,  Holt,  X.  P.  455,  in  which  it  was  held  that  a  farm- 
way  over  land  of  another  did  not  include  the  right  to  haul  lime  from  a  quarry. 

1  Washburn  on  Easements,  196.  "  So  the  owner  of  the  soil  of  a  way,  whether 
public  or  i^rivate,  may  make  any  and  all  uses  to  which  the  land  can  be  applied." 
(Perley  v.  Chandler,  6  Mass.  454;  Green  v.  Chelsea,  24  Pick.  71;  Pomeroy  v. 
Mills,  3  Yt.  279;  Lade  v.  Shepherd,  2  Strange,  10,004;  Adams  v.  Emerson,  6  Pick. 
57 ;  Atkins  v.  Boardman,  2  Mete.  457. ) 

An  excellent  article  in  a  late  periodical  thus  treats  of  this  subject:  "  To  what 
purposes  a  right  of  way  over  adjoining  property  may  be  extended  is  sometimes 
a  difficult  question.  A  thorough  exposition  of  the  law  on  the  subject  was  given 
in  Wimbledon  and  Putney  Commons  Conservators  v.  Dixon,  33  L.  T.  Eep.  (X.  S.) 
G79.  The  owner  of  a  farm  adjoining  a  common,  and  to  which  access  for  horses 
and  carriages  had  been  obtained  from  time  immemorial  by  ancient  tracks  over 
the  common  from  one  j)oint  to  another,  but  by  no  clearly  defined  road,  sought 
to  erect  houses  on  a  portion  of  his  farm,  and  use  a  road  which  had  recently  been 
made  in  substitution  for  the  ancient  tracks  over  the  common,  for  the  purpose  of 
drawing  building  materials,  intending  afterward  to  use  it  as  a  means  of  access  to 
the  houses  when  built.  Held,  that  the  owner  of  the  farm  had  no  right  to 
increase  the  burden  of  the  servient  tenement  by  changing  the  character  of  his 
Ijroperty,  and  that  an  injunction  would  be  granted  to  restrain  the  owner  of  the 
fann  from  drawing  the  materials  for  the  erection  of  the  projiosed  houses,  and 
from  any  other  excessive  user  of  the  road.  The  decision  was  made,  notwith- 
standing the  fact  that,  in  addition  to  using  the  ancient  tracks  for  access  to  the 
farm  for  ordinary  agricultural  purjioses,  the  owner  or  his  predecessors  had  also 
drawn  over  the  tracks  building  materials  for  adding  a  wing  to  the  farm-house, 
and  for  converting  a  mud-hovel  into  a  brick  cottage.  In  Cowling  ;'.  Higginson, 
4  M.  &  W.  256,  Lord  Abinger,  C.  B.,  said:  'If  a  way  has  been  used  for  several 
purposes,  there  may  be  a  ground  for  iixf erring  that  there  is  a  right  of  way  for  all 
purposes.'  And  similar  language  was  used  in  the  same  case  by  Parke,  B.  But 
in  Wimbleton  and  Putney  Commons  Conservators  v.  Dixon,  Lord  Justice 
James  said  that  '  when  we  consider  these  dicta  and  observations,  in  connection 
with  the  very  clear  language  of  the  Court  of  Queen's  Bench  in  Allen  v.  Gomme, 
11  A.  &  E.  759,  and  of  Lord  Chief  Justice  Bovill  and  INIr.  Justice  Willes,  in  the 
case  of  Williams  v.  James,  16  L.  T.  Eep.  (N.  S.)  664,  L.  R.  2  C.  P.  577,  I  am  quite 


§§  376-7  RIGHT    OF    WAY.  432 

§  376.  Repairs  of  road  over  another's  land  by  t4ie  per- 
son who  enjoys  the  easement. — In  the  matter  of  repairs  to 
a  private  way  over  another's  land,  it  is  the  duty  of  the  owner 
of  the  way  to  keep  it  in  repair.  It  is  due  to  himself  that  he 
so  keep  the  way  in  order  as,  in  case  of  the  established  road 
or  route  of  way  becoming  obstructed  or  impaired  from  over- 
flow or  other  cause,  the  owner  of  a  private  way  over  an- 
other's land  might  not  be  permitted  to  pass  over  any  other 
route.  ^ 

§  377.  A  way  by  prescription  or  user  is,  in  effect,  the 
same  as  a  distinct  grant ;  a  convenient  fiction  in  law  is  made 
use  of,  upon  the  hypothesis  that  the  owner  of  the  land  over 
which  the  way  extends  has  granted  a  right  of  way.  It  cannot  be 
supposed,  where  there  has  been  a  long  exercise  and  possession 
of  a  way  over  another's  land,  that  the  owner  of  the  fee  would 

satisfied  that  the  true  principle  is  the  principle  laid  down  in  the  later  cases, 
namely :  that  you  cannot,  from  evidence  of  user  of  property  in  its  original  state, 
infer  a  right  to  use  it  in  whatever  form  and  for  whatever  purpose  that  jjroperty 
may  he  changed;  that  is  to  say,  if  there  be  a  right  of  way,  however  general,  for 
whatever  purposes,  to  a  field,  the  person  who  is  the  owner  of  the  field  cannot 
from  that  say,  I  have  the  right  to  turn  that  field  into  a  manufactory,  or  into  a 
town  or  tan-yard,  and  then  use  the  right  of  way  for  the  purposes  of  the  manufac- 
tory or  town  so  built.'  See  on  this  subject  Atkins  v.  Boardnaan,  2  Mete.  457; 
and  cases  cited  in  "Washburn  on  Easements,  3d  Ed.  Sec.  4."  (13  A.  L.  J.  157, 
March  4th,  1876.) 

1  The  rule  in  this  behalf  is  thus  given  by  Washburn  in  his  treatise  on  Ease- 
ments, p.  19G:  "The  owner  of  a  private  way  may  enter  upon  the  same  and  re- 
pair it  or  i3ut  it  into  a  condition  to  be  used ;  and,  ordinarily,  it  is  incumbent  upon 
the  owner  of  the  way  to  keep  it  in  repair.  Nor  would  he  have  tlie  right  to  go 
outside  of  the  limits  of  such  way,  if  defined  and  designated,  in  i^assing  from 
one  point  to  another,  although  the  way  was  impassable  by  being  overflowed  or 
out  of  repair.  But  a  different  rule  prevails  in  respect  to  public  ways.  Though 
even  then,  he  could  only  justify  removing  enough  of  the  fences  of  the  adjoin- 
ing close  to  enable  him  to  pass  around  the  obstruction,  doing  no  imnecessary 
injury."  (Gerrard  v.  Cooke,  2  Bos.  &  P.  N.  R.  109;  Taylor  ?!. "Whitehead,  2  Doug. 
745;  Mellara  v.  Harrison,  4  Maule  &  S.  387;  Campbell  v.  Race,  7  Cush.  408;  Wil- 
liams V.  Safford,  7  Barb.  309;  3  Kent's  Com.  424.)  "There  is  a  temporary  right 
of  way  over  the  adjoining  land  if  the  highway  be  out  of  repair,  or  be  otherwise 
impassable,  as  by  a  flood.  But  this  right  of  going  upon  the  adjoining  land  ap- 
plies to  public  and  not  to  private  ways.  A  person  having  a  right  to  a  jirivate 
way  over  another's  land  has  no  right  to  go  upon  the  adjoining  land,  even 
though  the  private  way  be  impassable  or  founderous,  by  being  overflowed  by  a 
river.  The  reason  given  is,  that  the  owner  of  a  way  may  be  bound  to  repair, 
and  the  impassable  state  of  the  private  way  may  be  owing  to  his  neglect ;  but 
if  public  roads  become  impassable,  it  is  for  the  general  good  that  the  people 
should  be  entitled  to  pass  in  another  direction." 


433 


RIGHT   OF    WAY.  §  378 


have  suffered  his  neighbor  for  a  great  length  of  time  to  travel 
over  his  premises  unless  he  was  bound  to  do  so  by  an  executed 
grant.  Hence  it  has  become  usual,  where  a  way  has  been  used 
from  time  immemorial,  or  a  period  of  time  equivalent  to  that 
prescribed  by  the  Statute  of  Limitations  for  bringing  actions  for 
the  recovery  of  real  property,  to  presume  that  a  grant  of  way 
has  been  made.^ 

§  378.  The  Statute  of  Limitations  the  measure  ot  time 
of  user. — The  result  from  the  decisions  is  such  that  the  modern 
doctrine  of  prescription  requires  merely  a  user  and  enjoyment 
of  the  way  over  another's  land.  The  period  of  time  prescribed 
by  the  Statutes  of  Limitation  is  generally  twenty  years,  instead 
of  the  former  requirement  of  immemorial  enjoyment.  But 
there  seems  to  be  one  distinction  between  ancient  and  modem 
prescription  which  should  be  noticed,  which  is,  that  while 
under  the  ancient  doctrine  of  prescription  such  an  enjoyment 
was  regarded  as  conclusive  evidence  of  a  grant  which  had  been 
lost,  prescription,  as  known  in  modern  times,  only  raises  a  legal 
presumption  of  such  title,  which  may  be  rebutted  by  other 
legal  evidence. 2 

1  Washburn  on  Easements,  G6;  Tudor's  Lead.  Cas.  114;  Coe  ?;.  Wolcottville 
M.  Co.  35  Conn.  175.  "  The  provisions  of  the  Connecticut  statute  relating  to 
the  time  of  entry  by  the  owner  on  lands  of  which  he  is  disseized,  apply  to 
easements  adversely  used.  Where  an  easement  is  established  by  prescription, 
or  inferred  from  user,  it  is  limited  to  tlae  actual  user.  A  right  claimed  by  user 
is  only  co-extensive  with  the  user."  (Brooks  v.  Curtis,  4  Lans.  283;  Wash,  on 
Ease.  84;  1  Green.  Ev.  Sec.  17,  Note;  Sherwood  v.  Burr,  4  Day,  244.) 

2  Wash.  Ease.  G7;  Sargeant  v.  Ballard,  9  Pick.  255;  Campbell  ?!.  Wilson,  3 
East,  294 ;  Linnett  v.  Wilson,  3  Bing.  115 ;  Tyler  v.  Wilkinson,  4  Mason,  .397-402. 
"In  respect  to  the  acqixisition  of  an  easement  by  user,  no  universal  rule  as  to 
the  effect  in  law  of  evidence  of  particular  facts  can  be  laid  down.  Whether 
long  continued  use  of  an  easement  is  adverse,  or  is  in  subordination  to  the  title 
of  the  true  owner,  is  a  matter  of  fact,  to  be  decided,  like  other  facts,  upon 
evidence,  and  upon  the  circumstances  of  each  particular  case.  The  burden  of 
proof  to  show  that  it  is  adverse  is  on  the  party  claiming  rights  under  the  use." 
(Bradley's  Fish.  Co.  v.  Dudley,  37  Conn.  136;  Bodfish  v.  Bodfish,  105  Mass.  317.) 

Farm— 28. 


§  379  RIPARIAN    RIGHTS.  434 


CHAPTER   XXXIV. 

RIPARIAN  RIGHTS. 

§  379.  Lands  boiiucled  by  navigable  waters. 

§  380.  Lands  bounded  on  streams  not  navigable. 

§  381.  Ownership  of  water  in  a  stream. 

§  382.  Right  of  detention  of  water  of  a  running  stream. 

§  383.  Rights  of  owner  of  land  through  which  a  stream  runs. 

§  384.  General  rules  as  to  rights  of  riparian  proprietors. 

§  385.  No  absolute  ownershij)  of  water. 

§  386.  Each  riparian  proprietor  has  a  right  to  use  the  Av^ater. 

§  387.  Water  may  be  used  for  natural  purposes. 

§  388.  Right  to  use  water  for  irrigation. 

§  389.  Reasonable  consumption  of  water  depends  on  circumstances. 

§  390.  Right  of  proprietor  to  have  water  unpolluted. 

§  391.  Accretion  on  land  created  by  alluvium. 

§  392.  Island  situated  in  a  river. 

§  393.  Ownership  of  water-power  of  a  stream. 

§  394.  Mill  privilege. 

§  379.  Lands  bounded  by  navigable  waters. — The  title 
of  owners  of  land  bounding  upon  the  ocean,  or  navigable 
rivers,  wherein  the  tide  ebbs  and  flows,  extends  to  high-water 
mark,  and  the  land  lying  between  high  and  low-water  mark 
belongs  to  the  State. 

In  England,  this  strip  belongs  to  the  crown,  but  in  America, 
the  sovereignty  being  the  citizens,  the  title  vests  in  the  people 
at  large,  although  this  title  may,  by  the  State,  be  parted  with 
by  conveyance  to  individuals. 

The  use  of  the  navigable  parts  of  a  stream,  or  of  the  ocean, 
bounding  upon  the  land,  is  inalienable.  The  sea  and  navigable 
rivers  are  public  highways  at  common  law,  and  everywhere 
that  the  English  law  is  the  basis  of  jurisprudence.^ 

1  Howard  v.  Ingersoll,  13  How.  381 ;  United  States  v.  Pacheco,  2  Wall.  587-590. 
"The  public  have,  at  common  law,  a  right  to  navigate  over  every  part  of  a  com- 
mon navigable  river,  and  on  the  large  lakes;  and  in  England,  even,  the  crown 
has  no  right  to  interfere  with  the  channels  of  public  navigable  rivers.  Tliey 
are  public  highways  at  common  law.  The  sovereign  is  trustee  for  the  public^ 
and  the  use  of  navigable  waters,  and  the  soil  under  them,  belongs  to  the  State 
in  which  they   are  situated,   as  sovereign."     (3  Kent's  Com.  427;  Pollard  v. 


435  RIPARIAN   RIGHTS.  §§  880-1 

§  380.   Lands  bounding  on  streams  not  navigable. — The 

title  to  lands  which  bound  upon  streams  not  navigable  extends 
to  the  center  of  the  stream,  unless  the  terms  of  grant  by  which 
title  has  been  derived  clearly  manifest  that  it  was  the  intention 
of  the  grantor  to  limit  the  estate  granted  to  the  bank  or  margin 
of  the  stream ;  and  if  a  person  own  land  on  both  sides  of  the 
stream,  the  presumption  will  be  that  he  owns  all  the  land 
covered  by  the  same.^ 

§  381.  Ownership  of  water  in  a  stream. — A  title  to  the 
water  in  a  stream  is  not,  however,  to  be  implied  from  an  owner- 
ship of  half  or  all  the  land  in  the  river-bed ;  the  rights  of  a  ri- 
parian proprietor  of  land  over  which  there  is  a  flowing  stream, 
are  to  make  use  of  the  water,  for  any  and  all  lawful  purposes, 
while  it  is  passing  in  its  natural  current  over  his  land ;  but  in 
the  water  itself,  as  it  passes  along  the  stream,  he  has  no  prop- 
erty, other  than  in  so  far  as  it  is  by  him  actually  taken  posses- 
sion of. 

Hogan,  3  How.  212;  Stevens  v.  P.  R.  R.  Co.  34  K  J.  Law,  532;  Green  v.  Swift,  47 
Cal.  536.) 

The  title  of  riparian  proprietors,  whose  lands  bound  on  tide-waters,  extends 
to  high- water  mark ;  the  title  to  the  belt  of  land  between  higli  and  low- water 
mark  is  in  the  State,  but  maybe  conveyed  by  the  State  to  individuals.  (Mathew 
r.  Chapman,  40  Conn.  382. ) 

Yates  V.  Van  De  Bogart,  N.  Y.  Ct.  of  Appeals,  Feb.  G,  1875.  "  The  land  in  dis- 
pute was  a  strip  upon  the  west  side  of  a  creek;  the  plaintiff's  deed  described 
the  land  as  beginning  at  a  point  on  the  west  bank  of  a  creek,  thence  following 
said  west  bank  on  a  general  course  of  N.  4  degrees  24  minutes  W. 

Held,  that  this  gave  the  plaintiff  the  land  to  the  margin  of  the  creek  at  low- 
water  mark,  although  a  survey  of  the  land,  according  to  the  courses  and 
distances  mentioned  in  the  deed,  would  not  carry  him  to  the  creek,  as  the  creek, 
being  a  natural  monument,  the  courses  and  distances  must  yield  to  it." 

13  Kent's  Com.  427;  Palmer  r.  Mulligan,  3  Caines,  318;  Deerfield  v.  Adams, 
17  Pick.  41;  Commissioners  of  the  Canal  Fund  v.  Kempshall,  26  Wend.  404; 
ChUd  V.  Starr,  4  Hill,  369-373;  Adams  v.  Pease,  2  Conn.  481;  Esson  v.  McMaster, 
Kerr.  N.  B.  501;  Bowman  v.  Watken,  2  McLean,  376.  The  owner  of  the  bed  of 
a  stream  or  pond  has  the  right  to  cut  and  remove  ice  therefrom;  and  he  may 
maintain  an  action  of  trespass  against  another  who  cuts  and  removes  the  ice. 

State  V.  Pottmeyer,  33  Ind.  402;  Stetson  v.  Bangor,  60  Me.  495.  A  deed  to  land 
bounded  "to  and  on"  a  pond  which  was  raised  to  an  artificial  height  in  the 
winter,  and  allowed  in  summer  to  remain  at  its  natural  level,  held  to  convey 
to  low- water  mark  of  the  pond  in  its  natural  state.  (Payne  v.  Woods,  108  Ma.ss. 
160;  "Whitaker  v.  Burhams,  67  Barb.  237.) 

"The  bed  and  banks  of  a  stream  only  navigable  in  times  of  freshet,  for 
floating  logs,  belong  wholly  and  absolutely,  in  the  absence  of  any  claim  of 
prescription  or  user,  to  the  riparian  jiroprietors."  (Hubbard  v.  Bell,  54  111.  410; 
Warren  v.  Chambers,  25  Ark.  120.) 


§§  382-4  RIPARIAN    RIGHTS.  436 

§  382,  Right  of  detention  of  the  "water  of  a  running 
stream. — The  person  wlio  takes  up  water-rights,  or  to  whom 
they  pertain  by  contiguity  of  land  owned,  has  no  right  to 
detain  it  otherwise  than  so  far  as  he  takes  it  for  use ;  and  the 
rights  of  all  riparian  proprietors  on  a  stream,  in  respect  to  the 
waters  thereof,  are  equal,  and  no  one  has  a  right  to  so  use  the 
water  as  to  prevent  it  from  reaching  the  proprietor  lower  down 
the  stream.  Inasmuch  as  his  power  over  the  water  depends  on 
the  party  above  him  being  restrained  from  diverting  it,  so  he 
must  also  refrain  from  such  acts  as  would,  if  done  by  some 
proprietor  higher  up  stream,  deprive  him  of  the  water.^ 

§  383.  Rights  of  owner  of  land  through  which  a  stream 
runs. — Every  person  through  whose  land  a  natural  water-course 
runs  has  a  right,  publici  jiiris,  to  the  benefit  of  it  as  it  passes 
through  his  land,  to  all  useful  purposes  to  which  it  may  be  ap- 
plied; and  no  proprietor  of  land  on  the  same  water-course, 
either  above  or  below,  has  a  right  unreasonably  to  divert  it 
from  flowing  into  his  premises,  or  obstruct  it  in  passing  from 
them,  or  to  corrupt  or  destroy  it.^ 

§  384.  G-eneral  rules  as  to  rights  of  riparian  proprie- 
tors.— The  right  of  a  riparian  proprietor  in  the  water  which 
runs  through  his  land  is  not  strictly  of  the  character  of  an 
easement.  It  results  from  no  grant,  either  actual  or  construct- 
ive, or  to  be  presumed  from  user  for  great  length  of  time, 
but  is  rather  jure  naticrce,  and  is  an  incident  of   property  in 

1  The  owner  of  land  through  which  a  stream  of  water  naturally  flows  has  a 
right  to  its  use,  but  it  is  a  right  of  use  only.  He  cannot  divert  it  from  the  land 
of  another,  or  obstruct  or  detain  it  to  the  injury  of  such  other,  without  making 
himself  liable.  (PoUitt  v.  Long,  58  Barb.  20;  Agawam  Canal  Co.  v.  Edwards,  3G 
Conn.  496-7;  O' Riley  v.  McChesney,  3  Lans.  278;  Good  v.  Dodge,  3  Pittsb.  [Pa.] 
557.) 

-  The  rule  is  given  in  the  case  of  Wright?'.  Howard,  1  Sim.  &  S.  190-203,  by  the 
vice  chancellor,  as  follows:  "Without  the  consent  of  the  other  proprietors  who 
may  be  affected  by  his  operations,  no  proprietor  can  either  diminish  the  quantity 
of  water  which  would  otherwise  descend  to  the  proprietors  below,  or  throw  the 
water  back  upon  the  proprietor  above."     (3  Kent's  Com.  439. } 

O'Riley  v.  McChesney,  3  Lans.  278.  "The  owner  of  land  through  which 
there  flows  a  stream  of  water  may  not  divert  the  same  so  as  to  interfere  with 
the  enjoyment  thereof  by  the  land-owners  upon  the  stream  above  and  below. 
But  this  rule  does  not  apply  to  water  falling  upon  land,  as  by  rain  or  snow." 
(Phinizy  v.  Augusta,  47  Ga.  260.  Compare  Hough  v.  Doylestown,  4  Brews.  [Pa.] 
333. ) 


437  RIPARIAN    RIGHTS.  §§  385-6 

the  land — not  an  appurtenance  to  it,  but  rather  a  quality  insep- 
arably annexed  to  the  soil — and  passes  with  it,  not  as  an  ease- 
ment nor  as  an  appurtenance,  but  as  a  parcel.  Use  does  not 
create  it,  and  disuse  cannot  destroy  or  suspend  it.  Unity  of 
possession  and  title  in  such  land,  with  the  lands  above  or  below 
it,  does  not  extinguisli  or  suspend  it.^ 

The  natural  stream,  existing  by  the  bounty  of  Providence  for 
the  benefit  of  the  land  through  which  it  flows,  is  an  incident  an- 
nexed by  operation  of  law  to  the  land  itself.  Prima  facie,  every 
proprietor  upon  each  bank  of  a  stream  is  entitled  to  the  land 
covered  with  water  in  front  of  his  bank  to  the  middle  thread  of 
the  stream.  In  virtue  of  this  ownership,  he  has  a  right  to  the 
use  of  the  water  flowing  over  it,  in  its  natural  current,  without 
diminution  or  obstruction.  But,  strictly  speaking,  he  has  no 
property  in  the  water  itself,  but  the  simple  use  of  it  while  it 
passes  along. 

§  385.  No  absolute  ownership  of  the  water  by  riparian 
proprietor. — The  consequence  of  the  principles  above  noticed 
is  that  no  proprietor  has  a  right  to  use  the  water  to  the  preju- 
dice of  another.  It  is  wholly  immaterial  whether  the  party  be 
a  proprietor  above  or  below  in  the  course  of  the  stream.  The 
right  being  common  to  all  the  proprietors  on  its  course,  no  one 
has  a  right  to  diminish  the  quantity  which  will,  according  to 
the  natural  current,  flow  to  a  proprietor  below,  or  to  throw  it 
back  upon  a  proprietor  above.^ 

§  386.  Each  riparian  proprietor  has  a  right  to  use  the 
■water, — This  sieneral  rule  must,  however,  be  taken  with  the 
inevitable  qualification  that  each  may  use  the  water  in  turn, 

1  Washburn  on  Easements,  215;  Crossley  v.  Lightowler,  L.  R.  3  Eq.  296;  Bard- 
well  V.  Ames,  22  Pick.  333-5. 

2  Washburn  on  Easements,  215.  "These  rights  of  riparian  proprietors,  thougli 
coming  under  the  head  of  what  are  called  natural  easements,  are  not,  in  fact, 
the  result  of  any  supposed  grant  evidenced  by  long  acquiescence  on  the  part  of 
a  superior  proprietor  of  the  flow  of  the  water  from  his  land  to  the  land  below. 
The  right  of  enjoying  this  flow,  without  disturbance  or  interruption  by  any  other 
proprietor,  is  onejwre  naturce,  and  is  an  incident  of  property  in  the  land,  not  an 
appurtenance  to  it,  like  the  right  he  has  to  the  soil  itself,  in  its  natural  state,  im- 
afEected  by  the  tortious  acts  of  a  neighboring  land-owner.  It  is  an  inseparable 
incident  to  the  ownership  of  land,  made  by  an  inflexible  rule  of  law  an  abso- 
lute and  fixed  right,  and  can  only  be  lost  by  grant,  or  twenty  years'  adverse 


§  386  RIPARIAN    RIGHTS.  438 

and  hence  the  volume  is  necessarily  diminished  to  the  extent 
requisite  to  its  use ;  but  this  natural  diminution  is  so  clearly 
an  incident  to  the  existence  of  the  stream  as  not  to  consti- 
tute, in  effect,  a  violation  of  the  rule,  inasmuch  as  the  right 
of  each  proprietor  is  with  reference  to  that  of  all,  and  the 
natural  volume  of  Avater  at  each  place  is  not  what  it  would 
be  were  there  no  land  above  on  the  stream,  but  what  would 
be  its  condition  after  being  subjected  to  natural  uses  by  the 
proprietors  higher  up  stream.  There  must  be  allowed,  of  that 
which  is  common  to  all,  a  reasonable  use,  otherAvise  the  right 
would  be  without  value.  So  the  order  in  which  it  may  be  used 
is  naturally  provided  for  by  the  position  of  the  lands  upon  the 
banks  of  the  stream ;  and  if,  from  successive  use  along  the 
stream,  an  owner  of  lands  low  down  upon  its  course  is  dej)rived 
of  the  water,  it  is  but  the  nojtural  result  of  the  geographical 
position  of  his  lands. ^ 

The  upper  proprietor  has  a  right  to  make  any  use  of  the 
stream  which  is  beneficial  to  his  estate  and  himself,  which  is 
reasonable,  and  does  not  either  wholly  take  away  the  right  of 
the  lower  proprietor,  or  does  not  practically,  and  in  a  percept- 
ible and  substantial  degree,  diminish  and  impair  an  equal  and 
common  right  of  the  lower  proprietor.^ 

possession."     (Corning  ?;.  Troy  Factory,  39  Barb.  311;  Merrifleld  v.  Lombard,  13 
AUen,  1(5.) 
Davis  u.  Getchell,  50  Me.  004;  Ferrea  v.  Knippe,  28  Cal.  343. 

1  3  Kent's  Com.  441.  "  Pothier  lays  down  the  rule  very  strictly  that  the  ovnier 
of  the  upper  stream  must  not  raise  the  water  by  dams  so  as  to  make  it  fall  with 
more  abundance  and  greater  rapidity  than  it  would  naturally  do,  and  injure 
the  ijroprietor  below.  But  this  rule  must  not  be  construed  literally ;  for  that 
would  be  to  deny  all  valuable  use  of  the  water  to  the  riparian  proprietors.  It 
must  be  subjected  to  the  qualifications  which  have  been  mentioned,  otherwise 
rivers  and  streams  of  water  would  become  utterly  useless,  either  for  manufac- 
turing or  a,gricultural  purjioses."  (North  Western  U.  P.  Co.  v.  Atlee,  2  Dill. 
479.) 

2  Cummings  v.  Bardett,  10  Cush.  180;  Thomas  v.  Brackney,  17  Barb.  654;  Par- 
ker V.  Hotchkiss,  25  Conn.  321;  Gould  v.  Boston  Duck  Co.  13  Gray,  442;  Heud- 
rickti.  Cook,  4  Ga.  241;  Gregory  v.  Nelson,  41  Cal.  278;  Smith  v.  O'Hara,  43  Cal. 
371;  Thorp  v.  Freed,  1  Mont.  651. ;  Columbia  M.  Co.  v.  Holter,  1  Mont.  296. 

Miller  /;.  Lapham,  44  Vt.  416.  "A  ri^jarian  proprietor  who  has  erected  ma- 
chinery requiring  for  its  propulsion  more  water  than  the  stream  affords  at  its 
ordinary  stages,  has  no  right  to  detain  the  water  until  a  sufficient  quantity  for 
his  purposes  has  accumulated,  aixl  then  discharge  it  to  the  injury  of  the  propri- 
etors below.  Nor  has  he  a  right  to  build  a  reservoir  and  store  the  water  therein 
for  future  use  in  a  dry  season.     The  right  to  detain  water,  in  a  time  of  drouth. 


4o9  KIPARIAN    RIGHTS.  §  387 

§  387.  Water  may  be  used  only  for  natural  purposes. — 

The  right  to  consume  water  so  as  to  deprive  of  its  use  the 
lower  riparian  proprietors,  is  confined  to  natural,  as  contra- 
distinguished from  artificial,  uses.  The  respective  lands  only- 
have,  as  an  incident,  the  use  of  the  water,  subject,  as  already 
seen,  to  such  consumption  as  would  result  naturally  from  its 
use  by  those  whose  lands  lie  above,  but  this  subjection  is  not  for 
artificial  purposes,  because  no  limit  can  be  put  to  such  con- 
sumj)tion  and  to  suffer  the  water  to  be  used  for  other  than  such 
as  are  classed  as  natural  uses  would,  in  many  instances,  be  to 
deprive  the  lower  riparian  proprietor  of  his  benefit. 

Natural  use  of  water  is  such  as  is  absolutely  necessary  for 
quenching  thirst,  and  household  purposes  ;  and  in  civilized  life, 
water  for  live-stock  is  also  necessary.  These  wants  must  be 
supplied,  or  both  man  and  beast  will  perish  ;  and  while  numerous 
questions  have  arisen  as  to  the  liability  of  land-owners  for  the 
manner  in  which  they  have  applied  the  water  of  running 
streams  for  irrigation  and  mill  purposes,  it  has  been  generally 
conceded  that  it  is  no  violation  of  the  rights  of  any  other 
proprietor  for  one  to  use  the  waters  flowing  by  or  over  his 
lands  for  purely  domestic  purposes,  or  in  watering  his  stock ; 
and  the  proposition  appears  to  be  now  settled  that  each  pro- 
prietor, in  his  turn,  may,  if  necessary,  consume  all  the  water  for 
these  purposes,  that  is,  for  the  supply  of  these  natural  wants.^ 

extends  only  to  cases  where  the  macJimery  is  adapted  to  the  power  of  the 
stream  at  its  usual  stage."    (Clinton  v.  Myers,  46  N.  Y.  511.) 

1  The  leading  modern  case  on  this  point  is  that  of  Evans  ■(;.  Merriweather,  3 
Scam.  492,  in  which  the  Supreme  Court  of  Illinois  laid  down  the  general  rules 
applicable  in  the  j)remises.  The  stream  was  a  small  one;  the  plaintiff  and 
defendant  each  had  a  steam  mill  on  the  bank  of  the  brook,  from  the  waters  of 
which  they  obtained  suificient  to  use  in  their  respective  boilers  for  generating 
steam;  defendant  also  had,  at  his  mill,  on  the  point  of  tlie  two,  higlier  up 
stream,  certain  large  wells,  the  water  from  which  he  also  used  for  generating 
steam.  A  drouth  materially  diminished  the  volume  of  water  in  the  brook,  and 
caused  the  wells  to  become  dry,  and  defendant  thereupon  diverted  the  waters 
to  his  wells,  and  kept  them  full,  so  as  to  insure  to  himself  a  sufficient  supply  of 
water,  but  in  doing  so  he  took  all  the  water,  and  plaintiff  at  his  mill  below  got 
none.  The  Court  had,  therefore,  to  discuss  the  proposition  whether  the  entire 
consumption  of  a  stream  by  an  upper  proprietor  can,  in  any  case,  be  a  reason- 
able one.  "To  answer  this  question  satisfactorily,"  say  the  Court,  "it  is 
proper  to  consider  the  wants  of  man  in  regard  to  the  element  of  water.  These 
wants  are  either  natural  or  artificial.  Natural  are  such  as  are  absolutely  to  be 
supplied  in  order  to  his  existence ;  artificial,  such  only  as  by  supplying  them  his 
comfort  and  prosperity  are  increased.     To  quench  thirst,  and  for  household 


§  388  RIPARIAN    RIGHTS.  440 

§  388.  The  right  to  use  water  of  a  stream  for  irrigation. 

— Rights  of  irrigation  are  perhaps  more  difficult  to  subject  to 
abstract  rules  than  any  others.  Technically,  it  comes  within  the 
class  of  artificial  rather  than  natural  uses,  inasmuch  as  its  exer- 
cise depends  upon  some  labor  and  mechanical  contrivance  or 
work  of  man ;  and  how  far  a  riparian  proprietor  can  be  permitted 
to  divert  the  water  of  the  stream  has  been  the  subject  of  repeated 
judicial  inquiry. 

The  general  rule  aj^pears  to  be  that  the  owner  of  land,  by  or 
through  which  a  stream  runs,  may,  in  all  cases,  use  so  much  of 
the  water  as  is  necessary  for  his  family  and  his  live-stock ;  but 
he  has  no  right  to  use  it  in  irrigating  his  land  if  he  thereby  de- 
prives other  proprietors  of  the  reasonable  use  of  the  Avater  in 
its  natural  channel.  What  is  a  just  and  reasonable  use  may 
often  be  a  difficult  question,  depending  on  various  circum- 
stances.^ 

purposes,  it  is  absolutely  indispensable.  In  civilized  life,  water  for  cattle  is 
also  necessary.  These  wants  must  be  supplied,  or  both  man  and  beast  will 
perish."  "From  these  iiremises  would  result  this  conclusion,  that  an  indi- 
vidual owning  a  spring  upon  his  own  land,  from  which  water  flows  in  a  current 
through  his  neighbor's  land,  would  have  the  right  to  use  the  whole  of  it  if 
necessary  to  satisfy  his  natural  wants.  He  may  consume  all  the  water  for  his 
domestic  i^urposes,  including  water  for  his  stock.  If  he  desires  to  use  it  for 
irrigation  or  manufactures,  and  there  be  a  lower  i^roprietor  to  whom  its  use  is 
essential  to  supply  his  natural  wants,  or  for  his  stock,  he  must  use  the  water 
so  as  to  leave  enough  for  such  lower  proprietor.  Where  the  stream  is  small, 
and  does  not  sup^ily  water  more  than  sufficient  to  answer  the  natural  wants  of 
the  different  proi^rietors  living  on  it,  none  of  the  i^roprietors  can  use  the  water 
for  either  irrigation  or  manufactures.  Each  proprietor  may  in  his  turn,  if 
necessary,  consume  all  the  water  for  the  supply  of  these  natural  wants ;  and  if, 
beyond  the  supply  of  these,  any  surplus  is  left,  all  have  a  right  to  i)articipate 
in  its  benefits,  and  no  rule  can  be  laid  down  as  to  how  much  each  may  use 
without  infringing  the  rights  of  others.  The  question,  in  such  cases,  must  be 
referred  to  a  jury  to  say  whether  a  party  lias,  under  all  the  circumstances, 
used  more  than  his  just  proportion  of  the  water."  And  tried  by  the  tests 
whicli  had  thus  been  premised,  the  Court  held  that  defendant  was  not  warranted 
in  thus  diverting  the  water  to  his  wells.  (Ingraham  v.  Hutchinson,  2  Conn. 
584;  Blanchard  v.  Baker,  8  Me.  253.) 

1 .3  Kent's  Com.  441,  Note  2.  "A  riparian  i)roprietor  has  the  right  to  irrigate 
liis  land  from  the  stream,  if  he  does  not  interfere  with  the  rights  of  other 
proprietors;  and  whether  this  use  be  reasonable  or  not  depends  on  the  circum- 
stances of  each  case."    (Evans  v.  ]\Ierriweather,  3  Scamm.  492.) 

Pitts  V.  Lancaster  Mills,  13  Mete.  156.  "What  would  be  a  reasonable  and 
proper  use  of  a  considerable  stream,  ordinarily  carrying  a  large  volume  of 
water,  for  irrigation,  or  other  similar  uses,  would  be  an  unreasonable  and  in- 
jurious use  of  a  small  stream  just  sufficient  to  furnish  water  for  domestic  uses, 
for  farm-yards,  and  watering-places  for  cattle."  (Elliott  ?;.  Fitchburg  R.  E.  Co. 
lOCush.  191.) 


441  RIPARIAN  RIGHTS.  §§  389-90 

§  389.  Reasonable  consumption  of  water  depends  on 
circumstances. — The  reasonableness  of  the  detention  of  the 
water  by  the  upper  proprietor  must  depend  on  the  circum- 
stances of  each  case,  and  is  to  be  judged  by  the  jury.  The 
law  requires  of  the  party  that  he  should  use  the  stream  in  a 
reasonable  manner ;  and  one  of  the  conditions  of  the  use  is 
that  he  do  not  destroy,  or  render  useless,  or  materially  lessen 
or  affect,  the  application  of  the  water  by  those  situated  above 
or  below  him  on  the  stream.^ 

§  390.   Right  of  proprietor  to  have  water  unpolluted. — 

The  owner  of  land  through  Avhich  a  stream  runs  is  entitled  to 
the  use  of  the  water  in  its  natural  state  ;  and  any  one  who  pol- 
lutes it  so  as  to  render  it  unfit  for  such  use  is  liable  in  an  action 
for  damages,  unless  he  has  acquired,  by  grant  or  prescription, 
an  adverse  right  against  the  owner  of  the  land.  And  where  a 
stream  is  polluted  by  one  who  has  not  acquired  a  right  to  do 
so,  an  action  will  lie  against  him  by  the  owner  of  the  land 
through  which  the  stream  flows,  although  he  may  not  be  able 
to  show  any  actual  damage  by  injury  to  his  live-stock  or  to 
persons  on  his  farm.  His  right  is  to  the  water,  pure  and  clear, 
and  any  interference  with  that  right  is  actionable. 

The  manner  in  which  streams  are  most  commonly  polluted 
is  by  the  operating  of  mills  or  manufactories  upon  the  banks, 
and  maldng  use  of  the  passing  waters  so  as  to  taint  them,  or 
allowing  deleterious  or  discoloring  matter  to  pass  from  their 
works  into  the  stream. 

The   right  to   do  so  may  be  acquired  by  direct  purchase  of 

1  The  interest  of  riparian  proprietors  in  a  stream  is  not  a  title  to  the  water, 
but  merely  a  right  to  use  it  while  passing  over  the  land.  No  one  can  divert  or 
detain  it  unreasonably,  to  the  injury  of  the  usufructuary  rights  of  others  below 
him,  in  the  nature  of  a  nuisance,  which  may  be  abated,  or  for  which  an  action 
on  the  case  will  lie. 

Agawam  C.  Co.  v.  Edwards,  36  Conn.  476,  497.  "A  proprietor  cannot,  for  the 
purpose  of  irrigating  his  own  land,  wholly  abstract  or  divert  the  water-course, 
or  take  such  unreasonable  quantity  of  water  as  to  deprive  other  proprietors  of 
the  substantial  benefits  which  they  might  derive  from  it  if  not  diverted  or  used 
unreasonably."  (Elliott  v.  F.  R.  R.  Co.  10  Cush.  191;  Arnold  v.  Foot,  12  Wend. 
330.)  "The  defendant  had  a  right  to  use  so  much  of  the  water  as  was  neces- 
sary for  his  family  and  his  cattle,  but  had  no  right  to  use  it  for  irrigating  his 
meadow,  if  thereby  he  deprives  the  plaintiff  of  the  reasonable  use  of  the  water 
in  its  natural  channel." 


§  391  RIPARIAN  RIGHTS.  442 

the  privilege  from  the  parties  who,  being  on  the  stream  lower 
down,  are  affected,  or  by  adverse  possession  and  user  by  the 
person  who  commits  or  suffers  the  act  complained  of  for  a 
period  equivalent  to  that  prescribed  in  the  Statute  of  Limita- 
tions applicable  to  title  to  lands  by  prescription. 

In  the  measure  of  damages  may  be  considered  such  as  natu- 
rally or  necessarily  result  from  the  pollution  of  the  waters — 
the  diminution  of  rental  or  sale  value  of  land,  the  inconven- 
ience suffered,  loss  of  animals,  or  such  other  loss,  inconven- 
ience, or  injury  as  may  have  resulted  directly  from  the  act  com- 
plained of. 

With  the  right  to  recover  for  damages  suffered  by  the  unlaw- 
ful j)ollution  of  the  waters  of  a  stream  is  coupled  the  further  relief 
of  an  action  to  abate  the  nuisance ;  and  the  two  actions,  being 
for  the  same  act,  may  be  joined,  as  a  general  rule.^ 

§  391.  Accretion,  or  land  created  by  alluvion,  through 
the  action  of  the  water  of  a  stream  leaving  deposits  and  creating 
soil  along  the  shore,  belongs  to  the  riparian  proprietors  on  the 
bank  of  the  stream,  so  that  those  who  own  land  fronting  on  a 
river  are  entitled  to  the  land  added  thereto  by  accretion,  their 
respective  rights  to  be  ascertained  by  extending  the  original 
river  frontage  of  the  respective  parcels  belonging  to  the  several 

1  Murgatroyd  v.  Robinson,  7  Ellis  &  Black.  391 ;  Dickenson  v.  Grand  Junction 
Canal  Co.  7  Exch.  282;  Woodw.  Wand,  3  Ibid,  748;  Embrey  v.  Owen,  6  Excli. 
353;  Gardner  v.  Trustees  Etc.  2  Johns.  Ch.  162;  Gladfelter  v.  Walker,  Court 
of  Ai^peals  of  IMaryland,  July,  1875 — to  ajipear  in  40  Md.  This  was  an  action 
upon  a  complaint  by  a  farmer,  through  whose  laud  a  stream  ran,  against  the 
owners  of  a  paper  mill  for  iioUution  of  the  stream.  The  substance  of  the  case 
appears  from  the  ojiinion,  which  was  that  "the  owner  of  land  through  which  a 
stream  flows  is  entitled  to  the  use  of  the  water  in  its  natural  state ;  and  any 
one  who  pollutes  it,  so  as  to  render  it  unfit  for  such  use,  is  liable  in  an  action 
for  damages,  unless  he  has  acquired,  by  grant  or  prescription,  an  adverse  right 
against  the  owner  of  the  land.  And  wliere  a  stream  is  polluted  by  one  who 
has  not  acquired  a  right  so  to  do,  by  long  enjoyment  or  grant,  an  action  will  lie 
against  him  by  the  owner  of  tlie  land  tln-ough  which  the  stream  flows,  althougli 
he  may  not  have  suffered  any  actual  damage.  WHiere  the  owner  of  a  farm 
through  which  a  stream  flows  brings  an  action  for  damages  for  polluting  the 
stream,  he  is  entitled  to  recover  such  damages  as  naturally  or  necessarily  re- 
sulted from  the  ^\Tongful  acts  of  the  defendant ;  the  loss  of  an  opportunity  by 
the  plaintiff  to  rent  his  grist-mill,  the  diminution  of  the  rental  value  of  his  farm, 
and  the  inconvenience  he  may  have  been  put  to  in  the  use  of  the  same,  result- 
ing directly  from  the  conduct  of  the  defendant,  are  proper  elements  for  the  con- 
sideration of  the  jury  in  estimating  the  damages." 


443  RIPARIAN    RIGHTS.  §  391 

proprietors,  as  nearly  as  practicable  at  right  angles  Avith  the 
course  of  the  river  to  the  thread,  or  middle  line  of  the  stream, 
as  it  exists  after  the  accretion  is  formed.^ 

Alluvion  is  the  addition  to  riparian  lands,  gradually  and  im- 
perceptibly made  by  the  water ;  it  differs  from  reliction,  the  in- 
crease of  land  by  the  sudden  retreat  of  the  sea  or  a  river,  in 
that  the  land,  in  the  latter  case,  generally  belongs  to  the  State,^ 
and  is  the  direct  opposite  to  avulsion,  where,  by  the  immediate 
and  manifest  power  of  a  stream,  the  soil  is  taken  suddenly  from 
one  man's  estate  and  carried  to  another's,  and  where  the  title 
remains  in  him  from  whose  land  it  Avas  detached.  The  test  as 
to  what  is  gradual  and  imperceptible,  under  the  rule  of  definition 
given,  is  that,  though  the  persons  who  notice  the  change  may 
see,  from  time  to  time,  that  progress  is  being  made  by  the  in- 
crease of  soil,  they  could  not  perceive  it  while  the  process  Avas 
going  on.  It  makes  no  difference  Avhat  may  be  the  producing 
cause  of  the  deposit  or  increase,  whether  natural  or  artificial — 
the  result  as  to  OAvnership  remains  the  same:  the  inci'ease  of 
land  belono;s  to  him  who  OAvns  that  land  to  Avhich  it  becomes 
attached.  The  riparian  right  to  this  increase  is  an  essential  and 
inherent  attribute  of  the  original  OAvnership ;  it  rests  in  the  law 
of  nature,  and  is  of  like  character  as  that  of  the  oAvner  of  a  tree 
to  the  fruit  it  bears,  and  of  the  owner  of  animals  to  their  natu- 
ral growth  and  increase.  The  OAvner  is  subjected  to  the  risk  of 
loss  by  imperceptible  Avearing  aAvay  of  his  property,  and  the 
chances  of  gain  to  him  by  the  same  cause  operating  upon  prop- 
erty of  others.  If  there  be  a  gradual  loss,  he  must  bear  it ;  if 
a  gradual  gain,  it  is  his.  The  principle  applies  alike  to  streams 
that  do  and  those  that  do  not  overflow  their  banks,  and  Avhere 

1  Miller  v.  Hepburn,  8  Bush,  Ky.  326;  3  Kent's  Com.  428.  "  Land  formed  by 
alluvion,  on  the  bank  of  a  river  not  navigable,  by  the  gradual  wearing  away  of 
the  opposite  bank,  is  to  be  divided,  ordinarily,  according  to  this  rule :  Ascertain 
the  length  of  the  old  shore-line,  and  of  the  part  of  it  belonging  to  each  proprietor; 
Then  measure  off  for  each  proprietor  a  part  of  the  new  shore-line,  in  proportion 
to  what  he  held  in  the  old  shore-line;  and  then  draw  lines  from  the  boundaries 
at  the  ancient  bank  to  the  points  of  division  on  the  new  shore  as  thus  ascer- 
tained. In  this  way,  if  such  land  is  formed  in  the  bend  of  the  river,  and  the 
new  shore-line  is  just  one-half  the  length  of  the  old  one,  each  proprietor  will 
take  of  the  new  shore-line  just  one-half  the  extent  of  his  former  shore-line." 
(Batchelder  v.  Keniston,  51  N".  H.  49(;.) 

2  Schultz  on  Afi.  Eights,  115,  138;  Angell  on  Tide  Waters,  75;  Bract.  221:  2  Bl. 
Com.  262. 


§§  392-3  RIPARIAN   RIGHTS.  444 

dykes  and  other  defenses  are,  and  where  they  are  not,  used  to 
restrain  the  water.^ 

§  392.  Islands  situated  in  a  river  are,  as  to  title,  subject 
to  the  same  general  rule — that  is  to  say,  they  belong  to  the  per- 
son who  owns  the  land  on  that  bank  of  the  stream  to  which  the 
islands  lie  nearest ;  and  where  the  two  channels  caused  by  the 
division  of  the  stream  by  the  island  are  both  considerable,  as 
compared  to  the  entire  volume  of  water,  so  that  the  island  is  in 
the  middle  of  the  river,  the  dividing  line  should  be  run  through 
the  middle  of  the  island,  and  each  proprietor  would  own  half. 
In  case  the  island  is  formed  by  accretion,  and  is  in  the  middle  of 
the  stream,  the  division  line  should  be  according  to  the  original 
dividing  line,  or  filum  aqum^  the  center  of  the  stream,  continued 
on  from  the  place  where  the  waters  begin  to  divide.^ 

§  393.   Ownership  of  water-power  of   a  stream. — The 

water-power  of  a  stream  for  milling   purj^oses  is  a  species   of 
property  to  which  the  riparian  proprietor  may  justly  lay  claim. 

1  "  Alluvium  is  an  addition  to  land,  gradually  and  imperceptibly  made  by 
water  to  which  the  land  is  contiguous.  The  test  as  to  what  is  gradual  and  im- 
perceptible, in  the  sense  of  the  rule,  is  that,  though  the  witnesses  may  see,  from 
time  to  time,  that  progress  has  been  made,  they  could  not  perceive  it  while  the 
progress  was  going  on."     (County  v.  W.  Ferry  Co.  U.  S.  Sup.  Ct.  Feb.  1875.) 

"Whether  it  is  the  effect  of  natural  or  artificial  causes,  makes  no  difference, 
the  result  as  to  ownership  in  either  case  is  the  same.  The  riparian  right  to 
future  alluvium  is  a  vested  right ;  it  is  an  essential  and  inherent  attribute  of  the 
original  property."     (Ibid.) 

2  3  Kent's  Com  428.  "The  whole  of  the  old  and  the  whole  of  the  new  line  are 
to  be  taken  into  consideration,  so  that  each  may  have  his  due  proportion  of  the 
water-front."  (O' Don  ell  v.  Kelsey,  4  Sandf.  202;  Granger  v.  Swart,  1  Woolw. 
88;  Schools  v.  Risley,  10  WaU.  91.) 

These  general  rules  apply  where  accretions  occur  slowly,  from  year  to  year ; 
but  if  the  alteration  be  sudden,  it  is  not  deemed  within  the  strict  rule  of  ac- 
cretions. 

Chancellor  Kent  states  the  proposition  thus :  "  If  a  fresh- water  river,  running 
between  the  lands  of  separate  owners,  insensibly  gains  on  one  side  or  the  other, 
the  title  of  each  continues  to  go  ad  filum  medium  agum;  but  if  the  alteration  be 
sensibly  and  suddenly  made,  the  ownership  remains  according  to  the  original 
bounds ;  and  if  the  river  should  then  forsake  its  channel,  and  make  an  entirely 
new  one  in  the  lands  of  the  owner  on  one  side,  he  will  become  owner  of  the 
whole  river,  so  far  as  it  is  inclosed  by  his  land."  (3  Kent's  Com.  428;  Chapman 
V.  Hoskins,  2  Md.  Ch.485.) 

Ang.  on  Water-Courses,  Sec.  53;  2  Bl.  Com.  519.  "The  title  of  a  riparian  pro- 
prietor is  extended  by  alluvium  or  dereliction  only  where  the  accretion  of  dry 
land  is  by  imperceptible  degrees."     (Halsey  v.  McCormick,  18  N.  Y.  147.) 


445  RIPARIAN    RIGHTS.  §  394 

This  water-power  to  which  a  riparian  owner  is  entitled  consists 
of  the  fall  in  the  stream  when  in  its  natural  state  as  it  passes 
through  his  land,  or  along  the  boundaries  of  it.  Or,  in  other 
words,  it  consists  of  the  difference  of  level  between  the  surface 
where  the  stream  first  touches  his  land  and  the  surface  where  it 
leaves  it,  and  hence  the  rule  must  be,  that  a  man  has  a  right  to 
dam  back  the  water  to  his  upper  line,  as  the  water  was,  and  as 
the  bottom  of  the  creek  was,  in  a  state  of  nature  when  he  built 
his  dam.i 

§  394.    Mill  privilege. — The  use  of  this  power  of  a  stream, 

or,  as  it  is  technically  termed,  "  mill  privilege,"  is,  as  a  rule,  ex- 
clusive and  adverse  to  all  the  world ;  and  hence  one  of  the  most 
common  instances  of  acquiring  a  right  by  adverse  enjoyment  is 
that  of  obstructing  the  waters  of  a  stream,  and  often  of  thereby 
setting  back  water  upon  the  land  of  another,  by  means  of  a 
dam  erected  upon  the  owner's  land  for  the  purpose  of  raising  a 
head  of  water  for  the  operation  of  mills  or  hydraulic  works. 
If  this  is  continued  uninterruptedly  and  adversely  for  the  term 
of  twenty  years,  or  such  other  period  of  time  as  prescribed  by 
the  Statute  of  Limitations  of  actions  concerning  possession  of 
real  property,  the  mill-owner  acquires  thereby  an  easement,  or 
right  to  obstruct  ^  such  stream  to  the  extent  to  which  it  shall 

1  McCalmott;.  Whitaker,  3  Rawle,  84,  90;  Phimleigh  v.  Dawson,  1  Gilm.  544. 
"The  general  doctrine  relating  to  water-coitrses  is,  that  every  proprietor  is  en- 
titled to  the  flow  of  the  water  in  its  natural  course,  and  to  the  momentum  of 
its  fall  on  his  own  land."  (Van  Hoesen  v.  Coventry,  10  Barb.  518,  520;  Davis  r. 
Fuller,  12  Vt.  178.) 

But  the  reasonableness  of  the  detention  of  the  water  by  a  mill-owner  depends 
on  the  size  and  nature  of  the  stream,  and  the  exigencies  of  the  business  to  which 
it  is  subservient.  (Pool  v.  Lewis,  41  Ga.  162;  Webster  v.  Holland,  58  Me.  1G8; 
Daniels  v.  Chaffin,  28  Iowa,  327. ) 

2  Powers  V.  Osgood,  102  Mass.  454;  Carlisle  v.  Cooper,  21  N.  J.  Eq.  576;  Wash- 
burn on  Easements,  243;  Seeley  v.  Brush,  35  Conn.  419;  Heiskell  v.  Gross,  7  Phil. 
(Pa.)  317.  "Any  incorporeal  rights  which  may  be  lawfully  granted,  as  the 
right  to  divert  water  from,  or  to  flow  it  upon,  the  land  of  another,  may  be  ac- 
quired by  prescription."     (Phinizy  v.  Augusta,  47  Ga.  260.) 

"  A  complaint,  setting  forth  that  the  defendant  had,  for  upwards  of  five  years, 
been  diverting  and  using  water  belonging  to  the  plaintiff,  but  not  that  such  use 
was  under  claim  or  color  of  right.  Held,  on  demurrer,  not  to  allege  a  prescript- 
ive right  in  the  defendant."     (Winter  u. Winter,  8  Nev.  129.) 

"  To  acquire  the  right  to  overflow  the  land  of  another,  there  must  have  been 
an  uninterrupted  enjoyment,  under  color  of  right,  for  a  period  of  five  years. 
There  must  have  been  an  actual  occupation  by  the  flow  of  water,  to  the  knowl- 


§  394  RIPARIAN    RIGHTS.  446 

have  been  enjoyed.  But  no  priority  of  occupation,  or  use  of 
water  by  a  mill-owner  upon  a  stream  within  the  limits  of  his 
own  estate,  affect  the  right  of  a  riparian  proprietor  above  to 
erect  and  operate  a  mill,  in  a  suitable  and  reasonable  manner, 
upon  his  own  land.^ 


447  ROADS   AND   HIGnWAYS.  §  395 


CHAPTER  XXXV. 

KOADS  ^iJSTD  HIGHWAYS. 

§  395.  Public  roads— Eights  of  public  and  of  land-owner. 

§  396.  Title  to  land  in  roadway. 

§  397.  Estate  retained  in  roadway  by  owner  of  land. 

§  398.  Rights  of  public  in  a  highway. 

§  399.  Right  of  public  to  soil  and  timber  in  higliway. 

§  400.  The  public  has  no  right  of  pasturage  in  highway. 

§  401.  Eights  of  drovers  upon  public  roads. 

§  402.  Public  right  of  way,  how  obtained. 

§  403.  Eminent  domain. 

§  404.  Dedication  of  private  property  to  public  use. 

§  405.  Private  roads. 

§  400.  LegLslation  as  to  jirivate  roads. 

§  395.  Public  roads — Rights  of  public  and  of  land- 
owner.— Every  tlioi'ouglifare,  common  to  the  public,  is  a  high- 
way, whether  it  be  a  carriage-way,  a  horse-way,  a  foot-way,  or 
a  navigable  stream.  The  law  is  the  same,  with  regard  to  a  pub- 
lic way,  as  to  fresh-water  rivers,  so  far  as  relates  to  the  right  of 
soil,  and  it  is  always  to  be  presumed  that  he  who  owns  land  ad- 
joining such  a  way,  or  thoroughfare,  owns  the  land  in  front  of 
his  premises  to  the  center  of  the  same,  and  has  the  right  to  the 
soil,  exclusive  of  all  the  world,  save  so  far  as  it  is  subject  to  the 
right  of  passage  in  the  public.^ 

This  is  a  principle  of  the  common  law,  and  equally  the  rule 
in  every  State,  unless  specially  controlied  by  statute  ;  and,  there- 
fore, when  the  owner  of  land,  bounding  upon  a  highway,  con- 
veys to  another  such  land,  bounding  it  upon  the  road,  in  terms 
or  by  implication,  it  will  always  be  presumed  that  he  intended, 
and  the  law  will  give  to  his  deed  such  effect  as,  to  convey  to 
the  ffrantee  the  fee  of  the  land  to  the  center  of  the  road,  incum- 
bered  only  with  the  public  easement  or  right  of  way  over  it.^ 

1  3  Kent's  Com.  432 ;  The  Queen  v.  Saintliff,  G  INIod.  255 ;  Rangeley  v.  INIidland  R. 
Co.  L.  R.  3,  Chan.  Ap.  306,  310,  311 ;  1  Rol.  Abr.  B.  PI.  5 ;  Harg.  Law  Tracts,  5 ; 
Stevens  v.  Whistler,  11  East,  51. 

2  "  A  highway  is  said  not  to  be  an  easement,  but  a  dedication  to  the  public  of 


§§  396-7  ROADS    AND    HIGHWAYS.  448 

But  this  presumption  may  be  overcome  by  express  words  of 
reservation  in  the  grant,  and  it  is  competent  for  the  owner  of  a 
farm,  or  any  other  land  bounding  upon  a  public  highway,  to  de- 
scribe and  in  his  deed  bound  it  on  the  side  or  edge  of  the  high- 
way, so  as  to  rebut  this  presumption  of  law,  and  so  retain  his 
title  to  the  land  lying  within  the  road.^ 

§  396.   The  title  to  the  land  over  which  the  road  runs 

generally  remains  in  the  original  owner,  subject  to  the  public 
easement. 

He  may  convey  the  soil  under  the  highway  without  selling 
the  land  which  adjoins  the  same,  or  the  adjoining  lands  without 
the  fee  to  the  land  covered  by  the  road ;  these  estates  being 
severable  he  can  part  with  one  and  retain  the  other,  or  sell 
them  each  to  different  persons ;  but  if  they  are  to  be  so 
severed  it  must  be  by  express  terms,  and  such  as  distinctly  meet 
and  rebut  the  legal  presumption  that  a  grant  of  land  bounded 
upon  a  highway  carries  the  fee  in  the  half  of  the  same  opposite 
the  land.2 

§  397.  Estate  retained  by  owner  of  land  in  public 
road. — The  value  of  this  estate  in  the  half  of  the  road-bed  con- 
sists in  the  rights  which  the  owner  retains  therein ;  notwithstand- 
ing its  devotion  to  the  public  use,  the  owner  of  the  fee  retains 
his  exclusive   right  to   all   the   mines,  springs  of  water,  earth, 

the  occupation  of  the  surface  of  the  land  for  the  ijurpose  of  passing  and  repass- 
ing, the  iiublic  generally  assuming  the  obligation  of  repairing  it."  (3  Kent's 
Com.  432,  Note  1 ;  Cuming  v.  Prang,  24  Mich.  523. ) 

1  3  Kent's  Com.  434.  "  But  it  is  competent  for  the  owner  of  a  farm  or  lot,  hav- 
ing one  or  more  of  its  sides  on  a  public  highway,  to  bound  it  by  express  terms 
on  the  side  or  edge  of  the  highway,  so  as  to  rebut  the  presumption  of  law,  and 
thereby  reserve  to  himself  his  latent  fee  in  the  highway."  (Sibley  v.  Hoi  den,  10 
Pick.  249.) 

"  "Wlaether  a  grant  of  lands,  bounded  on  a  street,  highway,  or  running  stream, 
extends  to  the  center  of  such  street,  highway,  or  stream,  or  is  limited  to  the  ex- 
terior line  or  margin  thereof,  depends  u^jon  the  intent  of  the  jiarties  to  the  grant, 
as  manifest  by  its  terms ;  and  while  the  presumption  is  in  every  case  that  the 
grantor  does  not  intend  to  retain  the  fee  of  the  soil  within  the  lines  of  the  street 
or  under  the  water,  no  particular  word  or  form  of  expression  is  necessary  to 
overcome  such  presumption."  (A.  L.  J.  Feb.  2Gth,  187G,  p.  145;  White's  Bank 
V.  Nichols,  N.  Y.  Court  of  Appeals,  Feb.  1st,  1870. ) 

2  3  Kent's  Com.  434;  1  Roll.  Abr.  392,  pi.  5;  Headlum  v.  Headley,  Holt,  N.  P. 
463;  Wright  v.  Howard,  1  Sim.  &  Stu.  190;  Brown  v.  Kennedy,  5  Harr.  &  J.  195; 
Cortelyon  c.Van  Brundt,  2  Johns.  357;   Cole  v.  Drew,  44  Vt.  40. 


449  EOADS    AND    HIGHWAYS.  §§  398-9 

timber,  and  quarries  which  are  within  his  half  of  the  road,  for 
every  purpose  not  incompatible  with  the  public  right  of  way.  lie 
may  maintain  trespass,  or  ejectment,  or  waste,  in  respect  to  the 
same ;  and  should  the  road  be  abandoned,  or  the  public  ease- 
ment be  lost,  the  entire  and  exclusive  property  and  right  of 
enjoyment  revest  in  the  proprietor  of  the  soil.^ 

§  398.    The  rights  of  the   public  in  a  highway  are  to 

appropriate  it  to  the  public  use  in  passing  over  it  in  the  usual 
course  of  travel,  with  the  powers  and  privileges  incident  to  that 
right,  such  as  digging  the  soil,  using  the  timber  and  other 
materials  for  making  or  repairing  the  road  which  are  found 
within  the  limits  of  the  way ;  it  is  true  that  many  of  the  uses 
to  which  this  material  may  by  the  public  be  applied  are  incon- 
sistent with  the  exclusive  ownership  thereof  by  the  owner  of 
the  fee,  but  it  must  be  remembered  that  the  legal  title  by  which 
the  fee  is  retaiped  is  subject  to  the  pid^lic  easement ;  so  also  the 
right  to  use  the  soil,  timber,  and  stone  is  controlled  by  the 
superior  claim  of  the  public  in  this  right  to  use  the  same,  which 
goes  with  the  easement,  upon  the  general  principle  that  the 
grantor  of  any  estate  in  lands  is  presumed  to  convey  the  right 
to  use  such  property  of  the  grantor  as  is  requisite  to  the  enjoy- 
ment of  the  property  granted.^ 

§  399.   Right  of  public  to  soil  and  timber  in  roadway. — 

The  public  acquires  only  an  easement  in  such  soil,  timber, 
or  other  material  as  may  be  found  Avithin  the  highway,  and  is 
requisite  for  building  and  repairing  the  road ;  it  does  not  be- 
come the  owner  of  it,  can  devote  it  to  no  other  use,  and  will 
not  be  permitted  to  transport  it  to  other  roads,  or  apply  it  to 

1  3  Kent's  Com.  432;  Fairfield  v.  Williams,  4  Mass.  427;  Perley  v.  Chandler,  0 
Ibid,  454 ;  Stackpole  v.  Healy,  16  Ibid,  33 ;  Overman  v.  May,  33  Iowa,  89.  ' '  Where  a 
highway  or  street  in  a  municipal  corporation  has  been  acquired  by  prescription, 
the  fee  remaining  in  the  land-OAvner,  he  has  a  right  to  all  things  connected 
therewith,  such  as  trees  upon  or  mines  and  quarries  vinder  the  land  over  which 
the  higliway  passes,  subject  only  to  the  right  of  passage  by  the  public,  and  the 
incidental  right  of  repairing  and  keeping  it  in  proper  repair."  (Dubuque  *;. 
Maloney,  9  Iowa,  450 ;  Dubuque  v.  Benton,  23  Ibid,  248 ;  Perley  v.  Chandler,  G  Mass. 
454;  Jackson  v.  Hathaway,  15  Johns.  447;  Wash,  on  Ease.  514.) 

2  Wash.  Ease.  159;  3  Kent's  Com.  434;  Hatch  v.  Dwight,  17  Mass.  229;  Jackson 
r.  Hathaway,  15  Johns.  447;  Webber  u.  Eastern  R.  R.  Co.  2  Met.  151;  Child  w. 
Starr,  4  Hill,  3G9;  Dimlap  v.  Stetson,  4  Mason,  349. 

Farm— 29. 


§  400  EOADS    AND    niGHWAYS.  450 

other  public  uses,  or  needlessly  to  interfere  with  it  in  such  manner 
as  to  injuriously  affect  the  rights  in  it  of  the  owner  of  the  soil.^ 

§  400.  The  public  has  no  right  of  pasturage  upon  the 
highvray. — The  ownership  of  the  soil  is  not  in  the  public,  and 
the  easement  cannot  be  extended  beyond  its  legitimate  specific 
uses.  Neither  a  town,  nor  the  State,  has  power  to  give  aright  to 
individuals  to  use  the  land  appropriated  as  a  highway  other- 
wise than  as  such  thoroughfare  for  travel,  and  all  except  this 
right  of  use  by  the  public  remains  in  the  owner  of  the  soil,  and 
cannot  be  taken  from  him  for  private  use  without  his  consent, 
or  due  process  of  law.  Depasturing  of  land  is  no  part  of  its 
use,  in  any  sense,  as  a  highway.  The  owner  of  the  land  through 
which  the  public  road  runs  is  the  owner  of  the  soil,  mines, 
quarries,  and  timljcr,  so  far  restricted  in  the  enjoyment  of  the 
use  of  the  same  only  as  the  legitimate  requisites  of  the  public 
in  the  thoroughfare,  and  the  building  or  repairing  of  the  same, 
may  require.  Grass  is  in  no  sense  a  necessity  to  the  public, 
and  there  is  nothing  in  the  character  of  a  public  way  which 
makes  it  a  common,  or  gives  to  the  public  a  right  of  pasture 
thereon.^ 

1  lu  Gumming  <'.  Pranz,  24  Mich.  514,  au  action  was  brought  by  the  owner  of  tlie 
fee  in  an  alley,  against  a  contractor,  working  under  the  direction  of  the  city 
authorities,  for  taking  certain  gravel  from  under  the  roadway  of  the  alley  to 
grade  other  public  ways  in  the  city ;  it  was  held  that,  in  the  absence  of  any 
proof  to  the  contrary,  it  is  to  be  jiresumed  that  the  owner  of  the  adjoining  lot 
owned  the  soil  to  the  center  of  the  alley,  subject  only  to  the  public  right  in  the 
same  as  a  highway;  that  the  public  might  use  the  gravel  to  grade  this  alley  in 
front  of  the  lot,  or  the  whole  of  the  alley  on  which  the  lot  for  ingress  or  egress 
was  dependent,  but  not  to  repair  other  streets. 

But  in  Bissell  v.  Collins,  28  Mich.  278,  this  rule  is  held  to  be  qualified  as  to 
streets  in  a  city,  on  the  ground  that  they  are  each  with  the  other  so  joined  as  to 
make  a  complete  road  from  all  parts  of  the  city,  each  with  the  other,  and  that, 
therefore,  there  may  be  an  exception  in  favor  of  city  streets,  and  take  those  out 
of  the  general  rule  which  controls  suburban  highways. 

In  Overman  v.  May,  35  Iowa,  89,  it  was  held  that  although  the  public  might 
quarry  stone  under  a  road  or  highway  to  repair  the  same,  it  could  not  so  quarry 
stone  there  to  repair  another  one. 

Wash  on  Ease.  214;  Lade  v.  Shepherd,  2  Strange,  1004. 

2  A  strong  case  to  this  point  is  Cole  v.  Drew,  44  Yt.  49.  Defendant's  children, 
in  going  over  the  public  road  to  school,  were  discommoded  by  the  high  grass  get- 
ting their  clothing  wet.  She  applied  to  the  district  road  surveyor,  or  overseer, 
for  permission  to  cut  the  grass,  which  he  accorded,  and  she  cut  the  grass  and 
fed  it  to  her  horse;  iilaintiff,  a  proprietor  adjoining  the  road,  brought  suit  for 
the  value  of  the  grass  cut,  and  recovered.     The  Supreme  Court,  on  aj^ieal, 


451  ROADS    AND    HIGHWAYS.  §§  401-2 

But  from  this  it  does  not  result  that  where  fence  laws  exist, 
which  control  the  common-law  rule,  that  the  owner  of  cattlJ 
must  fence  them  in.  No  fences  are  requisite  by  the  owner  of 
agricultural  lands  bounded  on  a  public  highway,  though  it 
would  appear  to  be  so  where  the  common-law  rule  as  to  fences 
prevails. 

§  401.  The  rights  of  drovers  upon  public  highways.— 

The  public  have  a  free  right  of  way  and  travel  over  tlie 
highway  for  all  legitimate  purposes  of  travel,  freight,  and  com- 
merce, and  hence  droves  of  cattle,  or  other  live-stock,  may  be 
driven  along  the  road,  and  being  properly  in  the  highway,  if 
they  stray  upon  cultivated  land  through  which  the  road  runs, 
because  of  a  lack  of  sufficient  fences  to  restrain  them,  where 
the  common-law  rule  is  abrogated,  the  loss  caused  by  damage 
done  by  them  must  fall  on  him  whose  duty  it  was  to  fence  his 

land  from  the  public  road.^ 

» 

§  402.  Public  right  of  way,  how  obtained. — The  title  to 
the  public  easement  in  roads  is  acquired  by  direct  grant,  pre- 
scription, the  power  to  take  private  projicrty  for  public  use, 
commonly  known  as  eminent  domain,  and  dedication. 

Right  of  way  over  lands  to  the  public  may  be  granted  by  the 
owner  of  the  soil  by  deed,  or  it  may  be  presumed  from  such 
continuous  user  of  the  way  as  establishes  the  presumption  of  a 

affirmed  tlie  judgment,  and  held  that:  "The  owner  of  the  soil,  over  which  a 
highway  is  located,  is  entitled  to  the  eml)lements  growing  thereon,  and  to  the 
entire  use  of  the  land,  except  the  right  which  the  i^ublic  have  to  use  the  land 
and  materials  thereon  for  the  jrarpose  of  building  and  maintaining  a  highway, 
suitable  for  the  safe  passage  of  travelers."  (Goodtitle  r.  Alker,  1  Burr,  133; 
Holder  v.  Shattuck,  34  Vt.  33G;  Six  Cariienters'  Case,  8  Coke,  Mfi;  Fullam  r. 
Stearns,  30  Vt.  443.) 

1  "  At  common  law,  the  tenant  of  a  close  was  not  obliged  to  fence  against  an 
adjoining  close,  unless  by  force  of  prescrijDtion ;  but  he  was  at  his  peril  to  keej) 
his  cattle  on  his  own  close,  and  to  prevent  them  from  escaping;  and  if  they 
escaped,  they  might  be  taken  on  whatever  land  they  might  be  found  doing 
damage,  or  the  owner  was  liable  to  an  action  of  tresi^ass  by  the  party  injured. 
And  this  rule  of  the  common  law  applied  as  well  to  division  fences  as  to  those; 
upon  the  public  highway."  (Paist  v.  Low.  G  Mass.  94;  Holladay  v.  Marsh,  3 
Wend.  142;  Indianapolis  R.  R.  Co.  v.  Harter,  38  Ind.  557.) 

But  this  provision  of  the  common  law  has,  in  many  of  the  United  States, 
been  rendered  inapplicable,  and  held  to  be  incompatible  with  the  habits  and 
necessities  of  the  people.  (McBride  v.  Lynde,  55  111.  411;  Frazier  r.  Nortinus, 
34  Iowa,  82;  Iveeuan  v.  Cavanaugh,  44  Yt.  286.)  • 


§  403  ROADS    AND    HIGHWAYS.  i52 

grant  having  been  made,  and  which  is  called  prescription,  the 
original  theory  of  which  was  that  the  right  claimed  must  have 
])een  enjoyed  beyond  the  period  of  the  memory  of  man,  which 
for  a  long  period  of  time,  in  England,  went  back  to  the  time  of 
Richard  I ;  but  the  inconvenience  of  showing  so  long  an  enjoy- 
ment of  the  use  has  modified  the  rule,  and  reduced  the  period 
to  that  prescribed  by  the  Statute  of  Limitations  for  the  com- 
mencement of  actions  for  the  recovery  of  real  property.^  But 
it  must  appear  that  the  user  has  been  continuous,  and  of  such  a 
character  as  to  repel  the  presumption  that  the  way  has  been 
used  as  a  temporary  convenience  by  the  license  of  the  owner  of 
the  soil,  with  a  right  by  him  reserved  to  revoke  the  permission 
to  use  it  by  the  public.^ 

§  403.  Eminent  domain,  the  power  to  take  private  property 
for  public  use,  is  well  settled  to  exist  only  in  cases  where  the 
public  exigency  demands  its  exercise  ;  but  in  determining  wheth- 
er the  use  is  public,  it  has  never  been  deemed  essential  that  the 
entire  community,  or  any  considerable  portion  of  it,  should  di- 
rectly enjoy  or  participate  in  the  benefits  to  be  derived  from  the 
purpose  for  which  the  property  is  appropriated.  It  is  enough 
if  the  takino-  tends  to  enlarofe  the  resources,  increase  the  indus- 
trial  energies,  and  promote  the  productive  power  of  any  consid- 
erable number  of  the  inhabitants  of  the  State,  or  leads  to  the 
growth  of  towns  and  the  creation  of  new  channels  for  the  em- 
ployment of  private  capital  and  labor.  Such  results  indirectly 
contribute  to  the  general  welfare  and  property  of  the  whole 
community.^ 

1  Livermore  v.  City,  Etc.  35  Iowa,  558;  Overman  ?'.  May,  Ibid,  89.  "Where  the 
use  of  a  strip  of  land  for  a  liighway  is  siiiiposed  to  conform  to  the  highway  as 
laid  out,  but,  in  fact,  differs  from  it,  the  public  do  not  acquire  the  right  to  the 
strip  actually  used  in  virtue  of  an  adverse  possession,  because  the  possession 
does  not  correspond  with  the  claim  of  right,  nor  in  virtue  of  dedication,  because 
there  never  was  an  intent  by  the  owners  to  dedicate  the  strip  used."  (State  v. 
Welpton,  34  Iowa,  144;  Scribneru.  Blate,  28  Wis.  148.) 

-  "If  the  right  to  a  road  be  acqiiired  by  adverse  user  for  twenty  years,  its  non- 
nser  for  a  like  space  of  time,  with  the  knowledge  and  acquiescence  of  the  owner 
of  the  inheritance,  will  extinguish  the  right  so  acquired,  because  snch  ceasing 
to  use  the  road  affords  legitimate  presumption  of  a  release  of  the  right. ' '  (Browne 
('.  Trustees,  Etc.  37  Md.  108.) 

3  "To  authorize  the  taldng  of  private  property,  imder  statutes  of  emi- 
nent domain,  two  things  are  necessary :  1st.  The  property  must  be  taken  for 
pu1)lic  use ;  and  2d.  Provision  must  be  made,  except  in  iirgent  and  extraordinary 


453  ,       ROADS    AND    HIGHWAYS.  §  404 

It  should,  however,  be  understood  that  private  property  can 
only  be  so  taken  for  public  use  upon  due  compensation  being 
made  to  the  owner,  and  the  compensation  must  be  real  and  sub- 
stantial ;  it  is  not  enough  that  a  bond  be  given  to  insure  the  pay- 
ment of  the  value  of  the  property  taken.^ 

As  a  general  rule,  in  the  matter  of  laying  out  roads,  and  in 
all  others  of  a  similar  character,  statutes  prescribing  the  mode 
by  which  a  party  may  be  divested  of  his  property  for  public 
use,  without  his  consent,  must  be  strictly  construed,  and  the 
public,  as  against  the  individual  deprived  of  his  land,  must  be  pre- 
pared to  prove  that  the  mode  prescribed  has  been  strictly  fol- 
lowed.2 

§  404,  Dedication  of  private  property  to  public  use. — 

To  dedicate  property  to  public  use  is  simply  to  appropriate  or 
set  it  apart  to  such  use  ;  there  must  be  not  only  an  intention 
to  dedicate,  but  an  act  manifesting  this  purpose.  Hence,  an  ex- 
pression of  the  intention,  without  some  act  to  effectuate  it,  does 
not  make  a  valid  dedication. 

No  particular  form  or  solemnity  is  requisite  to  constitute  a 
valid  dedication.  A  writing  signed  and  acknowledged  is  not 
necessary.  A  dedication  may  be  by  parol,  and  may  be  estab- 
lished by  proof  of  the  verbal  declarations  of  the  owner  of  the 
land ;  or  it  may  be  presumed  without  proof  of  any  act  of  dedi- 
cation from  the  acquiescence  of  the  owner  in  the  use  and  occu- 

cases,  for  just  compensation  to  the  o^vner  of  the  iiroperty  taken."  (Loughbridge 
V.  Harris,  42  Ga.  500;  Hannibal  Bridge  Co.  v.  Shaubacker,  49  Mo.  555;  Hopkins  r. 
Mason,  42  How.  Pr.  115;  County  Commissioners  v.  Humphrey,  47  Ga.  5G5.) 

1  San  Mateo  W.  Co.  r.  Sharpstein,  50  Cal.  284;  Cooley  Const.  Lim.  5G2;  Pacific 
Law  Rep.  Feb.  15,  1S7G;  Sanborn  v.  Belden,  Sup.  Ct.  Cal.  Feb.  187G. 

"We  are  satislied  that  wise  policy  and  soimd  constitutional  principles  re- 
quire us  to  hold  that  a  bo7id  executed  by  sureties,  who  may  be  supposed  to  be, 
or  who,  in  fact,  may  be  responsible,  when  the  preliminary  order  is  made,  does 
not  constitute  a  certain  and  adequate  compensation."    (Sanborn  r.  Belden.) 

"If  it  be  competent  for  the  legislature  to  declare  that  a  mere  bond  shall  con- 
stitute compensation  upon  a  taking  at  the  commencement  of  the  condemnation 
proceedings,  it  might  also  declare  that  such  bonds  should  constitute  compensa- 
tion upon  the  final  taking,  which  would  operate  a  plain  violation  of  the  pro- 
visions of  the  constitution  restraining  the  exercise  of  eminent  domain."    (Ibid. ) 

^  Commissioners  of  Washington  Park,  Etc.  53  N.  Y.  131.  "A  State  legisla- 
ture may  prescribe  the  several  steps  to  be  pursued  in  the  assertion  of  a  right  to 
compensation  for  land  appropriated  for  public  use;  but  the  prescribed  proced- 
lu-e  must  not  destroy  or  substantially  impair  the  right  itself."  (Potter  r.  Ames, 
43  Cal.  75.) 


§  405  ROADS    AND    HIGHWAYS.  454 

pation  of  property  by  the  public.  But  generally  such  use  must 
be  adverse  to  the  owner  of  the  title  to  raise  a  presumption  of 
dedication.^ 

It  is  essential  that  the  dedication  should  be  by  the  o^vner  of 
the  fee,  inasmuch  as  the  dedication,  to  be  valid,  must  be  a  de- 
votion of  the  land  to  the  public  use  for  all  time,  and  no  title 
less  than  the  fee-simple  could  control  such  a  use.^ 

§  405.  Private  roads. — The  system  prevalent,  in  some  of 
the  States,  of  invoking  the  law  of  eminent  domain  in  behalf  of 
individuals,  by  giving  to  the  appropriate  officers  of  the  several 
counties  the  power  to  create  and  open  private  as  well  as  public 
roads,  is  open  to  serious  question  on  the  ground  of  unconstitu- 
tionality. The  general  tenor  of  statutes  which  provide  for  the 
opening  of  private  roads  is  such  as  to  lead  the  mind,  in  consider- 
ing them,  to  an  appreciation  of  the  fact  that  an  attempt  is  being 

1  o  Kent's  Com.  450;  Arrowsmitli  v.  New  Orleans,  2i  La.  An.  194;  Columbus 
r.  Dahn,  3G  Ind.  330;  Eobertson  v.  Wellsville,  1  Bond,  81;  Boers  v.  Strader,  1 
Cine.  (Ohio)  57;  Fisber  v.  Beard,  32  Iowa,  34G.  A  highway  cannot  be  estab- 
lished by  prescription,  where  the  consent  of  the  owner  of  the  land  appears. 
(Payard  v.  Hargrove,  45  Ga.  342;  Evansville  v.  Evans,  37  Ind.  229;  Yost  v. 
Leonard,  34  Iowa,  9;  McDunn  v.  Des  Moines,  Ibid,  4G7;  Briel  v.  Natchez,  48 
Miss.  423;  TViggins  v.  McCleary,  49  N.  Y.  34G;  Trustees  v.Walsh,  57  111.  3G3.) 

2  San  Francisco  v.  Canavan,  42  Cal.  541.  "A  dedication  to  piiblic  uses  by  a 
release  without  covenants  by  a  person  who  is  a  mere  occupant  of  public  land, 
having  no  other  estate  or  interest  therein  than  the  bare  i^ossession,  does  not 
bind  an  after-acquired  estate  in  the  same  premises."     (Deady,  1.) 

"Williams  v.  New  York,  Etc.  39  Conn,  509.  "To  constitute  a  dedication  of  laud 
for  a  public  highway,  there  must  be  an  intention  on  the  part  of  the  owner  so  to 
dedicate  it,  and  an  acceptance  of  it  for  such  use  by  the  public."  (Havana  r. 
Biggs,  58  111.483;  Tyler  v.  Sturdy,  108  Mass.  19G;  Peoria  r.  Johnston,  5G  111.  45; 
Houghton  V.  Harvey,  33  Iowa,  203. ) 

"  Where  a  road  had  been  traveled  for  over  thirty  years,  and  was  not  a  mere 
neighborhood  track  through  i;ninclosed  woodland,  but  a  well  defined,  traveled 
road  between  important  jaoints  in  the  neighborhood,  and  the  travel  varied  not 
more  than  usual  from  the  main  beaten  track,  and  the  public  authorities,  with 
the  knowledge  of  the  former  owners  of  the  land  over  which  it  passed,  made  re- 
pairs, and  built  bridges  where  needed,  held,  that  the  long  viser  by  the  public, 
and  the  acts  of  acceptance  by  the  authorities  in  making  repairs  and  building 
bridges  where  needed  along  the  line  of  the  road,  and  the  acquiescence  of  the 
grantors  of  the  owner  contesting  the  road,  fully  justified  the  jury  in  inferring 
a  dedication  and  the  existence  of  a  highway."     (Hiner  v.  Jeanport,  G5  111.  428.) 

"  A  highway  may  be  lawfully  established  by  public  usei'  and  recognition  by 
the  public  authorities,  and  acquiescence  of  the  owners  of  the  land  over  which  it 
passes.  No  express  words  of  dedication  are  necessary,  and  consent  may  be  in- 
ferred from  acquiescence  and  vser  by  the  public,  and  ^iser  does  not  depend  upon 
any  fixed  jieriod  of  time."     (Hiner  v.  Jeanport,  G5  111.  428.) 


•155  ROADS    AND    HIGHWAYS.  §  406 

made  to  reacli  and  remedy  a  class  of  evils  of  a  quasi-^uhWc 
character. 

The  community  appears  to  be  interested  in  the  development 
of  each  farm  to  its  fullest  capacity  of  production,  that  it  may 
add  to  the  commonwealth ;  and  the  creation  of  small  f arm-home- 
!?teads  is  one  of  the  most  efficient  means  to  this  development. 
Hence,  it  naturally  results  that  such  encouragement  as  may 
properly  be  given  to  the  cutting  up  of  large  into  small  parcels 
of  land  may,  and  often  does,  give  rise  to  such  a  condition  of 
things  as  that  citizens,  in  their  homes,  may  have  no  means  of 
reaching  the  highways  without  there  being  any  pressing  public 
necessity  for  a  public  road  to  or  by  their  farms. 

In  such  cases,  it  is  not  easy  to  say  what  the  remedy  is  to  the 
patent  evil ;  the  general  public  good  may  not  be  sufficient  to 
procure  the  opening,  to  such  farms,  of  public  roads,  and  the 
constitutionality  of  the  laws  which  permit  the  opening  of 
private  roads  is  more  than  questionable.  The  right  of  eminent 
domain  is  the  ultimate  right  of  the  sovereign  power  to  appropri- 
ate, not  only  the  public  property,  but  the  private  property  of 
all  the  citizens  within  the  territorial  sovereignty,  to  public  pur- 
poses ;  but  it  is  only  to  be  exercised  when  the  public  exigencies 
demand  it,  and  it  cannot  properly  be  claimed  that  the  exigency 
which  demands  the  opening  of  a  private  road  can  be  a  'piihlic  one.^ 

§  406.  Legislation  as  to  private  roads. — It  is  conceded, 
by  all  the  later  authorities,  that  the  legislature  has  no  power,  in 
any  case,  to  take  the  property  of  one  individual  and  pass  it  over 
to  another,  without  reference  to  some  vise  to  which  it  is  to  be 
applied  for  the  public  benefit.  It  seems  not  to  be  allowable, 
therefore,  to  authorize  private  roads  to  be  laid  out  across   the 

1  Bankhead  v.  Bro\\Ti,  25  Iowa,  540;  Cooley,  Const.  Lira.  530;  Waterworks  Etc. 
V.  Burkliardt,  41  lud.  364;  Angel  on  Highways,  1,  2;  Sadler  v.  Langham,  34  Ala. 
311. 

Nesbitt  V.  Trumbo,  39  111.  110,  held  that  an  act  authorizing  the  establishment 
of  private  roads,  so  far  as  it  undertook  to  appropriate  private  property,  was  un- 
constitutional ;  that  the  legislature  was  powerless  to  afford  the  means  by  which 
a  private  way  could  be  established  over  another's  land  without  his  consent. 
(Dickey  v.  Tennison,  27  Mo.  373;  Osborn  v.  Hart,  24  Wis.  89;  Taylor  v.  Porter,  4 
Hill,  140.) 

"The  statute  authorizing  the  location  of  private  roads,  as  far  as  it  provides 
for  the  exercise  of  the  right  of  eminent  domain  to  establish  them,  is  unconstitu- 
tional."    (Wild  V.  Deig,  43  Ind.  455.) 


§  406  ROADS    AND    HIGHWAYS.  456 

lands  of  unwilling  parties  by  an  exercise  of  this  right.  The 
easement,  in  such  a  case,  would  be  the  property  of  him  for  whom 
it  was  established.^ 

Even  if  it  be  conceded  that  the  public  exigency  requires  that 
a  way  should  be  opened  to  every  man's  farm,  and  that  the  State 
may  and  should  provide  for  the  establishment  of  a  public  road 
or  highway,  to  enable  every  citizen  to  discharge  his  duties  and 
travel  to  and  from  his  farm,  it  does  not  follow  that  such  ways 
should  be  private,  and  owned  by  the  party  applying  for  them. 
If  it  would  be  of  public  utility  to  establish  the  road,  then  it 
should  be  a  highway.  If  not,  the  right  of  eminent  domain  can- 
not be  exercised  to  establish  it.  It  is  not  the  amount  of  travel, 
the  extent  of  the  use  of  the  highway,  by  the  public,  that  distin- 
guishes it  from  a  private  way  or  road — it  is  the  right  to  so  use 
or  travel  upon  it,  not  its  exercise. 

1  "The  law  for  the  establishment  of  i>rivate  ways,  for  the  benefit  of  one  man 
over  the  lands  of  another,  is  unconstitutional."  (Stewart  v.  Hartman,  46  Ind. 
331;  Clark  ii.  White,  2  Swann,  Tenn.  540;  Hickman's  Case,  4  Harring.  580; 
Perrine  v.  Farr,  2  Zab.  380. ) 


TABLE  OF  CASES. 


TABLE   OF   CASES. 


A. 


Abbey  Homestead  Co.  v.  Willard,  48 

Cal.  614,  §  303. 
Academy  of  Music  v.  Hackett,  2  Hilt. 

217,  §  347. 
Adams  v.  Adams,  13  Pick.  387,  §  247. 
V.  Bafeakls,  1  Leon.  240,  §  263. 
V.  Clark,  9  Cusii.  215,  §  294. 
V.  Emerson,  6  Pick.  57,  §§  367, 

375. 
V.  McKinley,  Addison,  258,   §§ 

211,  214. 
V.  Pease,  2  Conu.  481,  §  380. 
V.  Tanner,  5  Ala.  740,  §  15. 
Agate  V.  Loweubien,  57  K.  Y.  604,  §  301. 
Agawam  G.   Co.  v.  Edwards,  36  Conn. 

476,  §§  382,  389. 
Aiken  v.  Smith,  21  Vt.  172,  §§  331,  332. 
Alexander  v.  Greene,  3  Hill,  9,  §  292. 
Alden  v.  Pearson,  3  Gray,  342,  §  187. 
Aldridge  v.  G.  W.  E.  Co.  3  M.  &  G. 

515,  §§  65,  70. 
Allan  V.  Gomme,  11  Ad.  &  E.  759,  §  375. 
Allcott  r.  Boston  S.  F.  M.  Co.  9  Cush. 

17,  §  108. 
Allen  V.  Hammond,  11  Peters,  63,  §  114. 
Allen  V.  Martin,  36  Ala.  330,  §  324. 
Allison  V.  Brookshire,  38  Tex.  199,  §  27. 
Althorf  U.Wolfe,  22  N.  Y.  355,  §  50. 
Alwood  V.  Mansfield,  33111.  452,  §  302. 
Alwood  V.  Puckman,  21  111.  202,  §  337. 
Alger  V.  Pool,  11  Cush.  450,  §  231. 
Ambrose's  Case,  Phill.  Law,  (N.  C. )  91, 

§328. 
Anderson  v.  Buchanan,  8Ind.  132,  §  371. 
V.  C.  E.  S.  Co.  64  N.  C.  399, 
§63. 
Andre  v.  C.  &  N.  W.  Railway  Co.  30 

Iowa,  107,  §  257. 
Andrews  v.  Paradise,  8  Mod.  318,  §  347. 
Antisdel  v.  Railway  Co.  26  Wis.  145, 

§90. 
Appledee  v.  Percy,  Law  Pep.  9  C.  P. 

647,  §  153. 
Appleman  v.  Fisher,  34  Md.  540,  §§  128, 

130. 
Appling  V.  Odom,  46  Ga.  585,  §§  333, 

334 
Arnold  r.  Foot,  12  Wend.  330,  §  389. 
Arrowsmith  v.   New  Orleans,    24  La. 

An.  194,  §  404. 
Aston  /■.  Aston,  1  Vesey  Sr.  264,  §  301. 


Atkin  V.  Acton,  4  Carr  &  Payne,  208, 

§  256. 
Atkins  V.  Bordman,  2  Met.  457,  §  375. 
Atkinson  v.  Horridge,  22  Veterinarian, 

452,  §  133. 
Atterbixry  v.  Fairmanner,  8  Moore,  32, 

§§  131,  133. 
Attkins  ?'.  Curwood,  7  Car.  &  P.  760, 

§  105. 
Atwood  r.  Holcomb,  39  Conn.  270,  §  314. 
V.  R.  T.  Co.  9  Watts.  Penn.  87, 
§  292. 
Auchmuty  v.  Ham,  1  Denio,  495,  §  154. 
Austin  V.  Manchester  Etc.  R.   R.   Co. 

11  Eng.  L.  &  E.  512,  §  292. 
Austin  V.  Sawyer,  9  Cow.  39,  §  33. 
Averitt  v.  Murrell,  4  Jones'  Law,  323, 

§§  54,  57. 
Aylesworth  v.  Railway  Co.   30  Iowa, 

459,  §§  89,  237. 


B. 


Babcock  v.  W.  R.  R.  Corp.  9  Met.  553, 

§76. 
Bachelder  v.  Heagan,  18  Me.  32,  §  55. 

V.  Keniston,  51  X.  H.  496,  § 
391 
Bagleliole  v.  Walters,  3  Campb.  154,   § 

126. 
Bailey  v.  Colby,  34  N.  H.  29,  §  352. 
V.  Fillebrown,  9  Me.  12,  §  339. 
r.  Forrest,  2  C.  &  K.  131,  §  133. 
r.  Hudson  Riv.  R.  R.  Co.  49  N. 
70,  §  274. 
Baillie  v.  Kell,  4  Bing.  (X.  C.)  6.38,  §  256. 
Baird  r.  Gillett,  47  N.  Y.  18(),  §  140. 
Baker  v.  Haldeman,  24  jSIo.  219,  §  .315. 
r.  Jordan,  3  Ohio  St.  438,  §§  19, 23. 
V.  Keen,  2  Stark.  501,  §  310. 
V.  Lakeman,  12  Met.  195,  §§  230, 

231. 
V.  Bobbins,  9  Kan.  303,  §  232. 
Balcom  v.  Railway  Co.  21  Iowa,  102, 

§85. 
Ballon  V.  Farnum,  11  Allen,  73,  §  182. 
Baltimore  Etc.  R.  R.  Co.  v.  Brady,  32 

Md.  333,  §  292. 
Baltimore  Etc.  R.  R.  Co.  v.  Dorsey,  37 

Md.  19,  §§  66,  68. 
Baltimore  Etc.  R.  R.  Co.  ?,'. Woodruff,  4 

Md.  242,  §  70. 
Bank  i'.  Crary,  1  Barb.  542,  §§  32,  37. 


460 


TABLE    OF    CASES. 


Bank  of  Rochester  v.  Jones,  4  X.  Y.  497, 

§274. 
Bankard  v.  B.  Etc.  Railway  Co.  34  Md. 

197,  §  293. 
Bankliead  v.  Brown,  25  Iowa,  540,  §  405. 
Bardwell  v.  Ames,  22  Pick.  333,  §  384. 
V.  Purringtou,  107  Mass.  427, 
§330. 
Baring  v.  Corrie,  2   B.   &  Aid.   147,  § 

268. 
Barnard  v.  Eaton,  2  Cush.  295,  §  32. 

V.  Kellogg,  10  Wall.  383,  §  127. 
V.  Monnott,  33  How.  Pr.   440, 

§  271. 
V.  Poor,  21  Pick.  378,  §§  50,  52. 
Barnnm  r>.  Van  Dusen,    IG  Conn.   200, 

§§  145,  1G7,  211. 
Barrett  v.  Buxton,  2  Aitken,  1G7,  §  107. 
V.  Porter,  14  Mass.  143,  §  297. 
V.  Pritchard,  2  Pick.  512,  §  158. 
Barron  v.  Collins,  49  Ga.  581,  §  333. 
Barrows  v.  Fassett,  3(5  Vt.  625,  §  245. 
Bartholomew  v.  Warner,  32  Conn.  98, 

§  124.  , 

Bartlett  v.  Hoppock,  34  N.  Y.  118,  §  164. 
Bartlett  v.  EaUwav  Co.  20  Iowa,  188,  § 

89. 
Barton  v.  Morris,  Sup.  Ct.  Penn.  July, 

1875,  §  288. 
Barton  v.  Sadock,  1  Bulstr.  103,  §  277. 
Bass  r.  Chicago  Etc.  R.  R.  Co.  28  111.  9, 

§§  G3,  66,  70,  71,  73. 
Bassett  v.  Collis,  2  Campb.  523,  §  133. 
Bavard  v.  Hargrove,  45  Ga.  342,  §  404. 
Bay  City  Etc.  R.  R.  Co.  v.  Austin,  21 

Mich.  402,  §  240. 
Bayliffe  v.  Butterworth,  1  Exch.  425,  § 

128. 
Bayntine  v.  Sharp,  1  Lutw.  90,  §  65. 
Beach  v.  Mullin,  34  N.  J.  Law,  M3,  § 

254. 
Reals  V.  Olrastead.  24  Vt.  114,  §  125. 
Bear  v.  Bitzer,  16  Pa.  St.  (4  Harris)  175, 

§16. 
Beardslee  v.  French,  7  Conn.  125,  §  354. 
Beauliau  v.  Finglam,  Year  Books,  2  H. 

4,  Fol.  18,  PI.  5,  §§  50,  65. 
Beck  V.  Dyson,  4  Cami^b.  198,  §  175. 
V.  Sheldon,  48  N.Y.  365,  §  164. 
Bedell  v.  Railway  Co.  44  N.Y.  ;367,  §  71. 
Bedford  ;'.  Flowers,  11  Hump.  242,  §  99. 
Bedford  v.  Hannibal  Etc.  Railway  Co. 

46  Mo.  456,  §§  ()(i,  73. 
Beirne  v.  Dord,  2  Sandf .  89,  §  127. 
Bell  V.  Gardiner,  4  Man  &.  Gran.  11,  § 

114. 
Bell  r.  Kaiser,  50  Mo.  150,  §  272. 
Bellefontaine  &  I.  R.  R.  Co.  v.  Schruy- 

hart,  10  Ohio  St.  116,  §  85. 
Seller  v.  Marchant,  30  Iowa,  350,  §  312. 
Bemis  r.   C.  &  P.  R.  R.  Co.  42  Vt.  375, 

§§  85,  86,  87,  240. 
Bennett  v.  O'Brien,  37  111.  250,  §  101. 
Benny  v.  Rhodes,  18  Mo.  147,  §  282. 
Benson  v.  Remington,  2  Mass.  113,  §§ 

310,  313. 
Bentley  v.  Griifin,  5  Taunt.  356,  §  105. 
Bernal  v.  Hovious,  17  Cal.  542,  §§  334, 

338. 
Best  r.  Osborne,  R.  &  M.  290,  §  133. 


Bevan  v.  Waters,  3  Car.  &  Payne.  520, 

§  189. 
BigeloAV  ?'.  Walker,  24  Vt.  149,  §  286. 
Bigelow  C.  Co.  ?'.  Clinton,  108  Mass.  70, 

§  373. 
Bills  V.  Belknap,  38  Iowa,  225,  §  229. 
Bingham  v.  Rogers,  6  Watts.  &  S.  495, 

§  292. 
Biuney   v.   Hull,   5   Pick.  503,  §§  212, 

214. 
Birge  v.  Gardner,  19  Conn.  507,  §  64. 
Bishop  V.  Bisliop,  11  N.  Y.  123,  §§  44, 
228. 
V.  Doty,  1  Vt.  37,  §  338. 
V.  Shepherd,  23  Pick.  492,  §  255. 
Bissell  V.  Collins,  28  Mich.  278,  §  399. 

V.  N.  Y.  C.  R.  R.  Co.  25  N.  Y. 

442,  §  291. 
V.   Southworth,  1  Root,  269,   § 
228. 
Blackburn  v.  Mackey,  1  C.  &  P.  1,  § 

310. 
Blain    r.   Taylor,   19  Abb.   Pr.   228,   § 

216. 
Blair  v.  Claxton,  18  jST.  Y.  529,  §  347. 
Blake  v.  Ferris,  5  Is".  Y.  48,  §  50. 

V.  Railway  Co.  19  Minn.  418,  §  82. 
r.  Lanyon,  6  T.  R.  221,  §  263. 
V.  Nicholson,  3  Maule  &  Selw. 
167,  §  190. 
Blakely  v.  Sharp,  1  Stoct.  Ch.  9,  §  364. 
Blakemore  v.   Bristol  R.  Co.  8  El.  & 

Blk.  1035,  §  180. 
Blanchard  v.  Baker,  8  Me.  253,  §  387. 
Blenkinsop  v.  Clayton,  7  Taunt.  597,  § 

113. 
Blood  V.  Shannon,  29  Cal.  393,  §  271. 
Bloss  V.  Kittridge,  5  Vt.  28,  §  118. 
Blossom  V.  Dodd,  43  N.  Y.  264,  §§  292, 

293. 
Blyth  V.  B.  W.  Co.  2  Jur.  N.  S.  333,  11 

Exch.  781,  §  62. 
Board  v.  Head,  3  Dana,  489,  §  174. 
Bodfish  V.  Bodtish,  105  Mass.  317,  §  378. 
Boerum  v.  Schenck,  41  N.  Y.  182,  §  318. 
Boeres  v.  Strader,  1  Cins.  (Ohio)  57,  § 

404. 
Bohanuan  v.   Hammond,  42  Cal.  227, 

§  290. 
Bohm  V.  Dunphy,  1  Mon.  Ter.  333,  §  302. 
Boies  V.  Hartford  &  N.  H.  R.  R.  Co.  37 

Conn.  272,  §  187. 
Bolden  v.  Brogden,  2  M.  &  Rob.  113,  § 

133. 
Bolton  V.  Miller,  6  Ind.  262,  §  329. 
Booth  V.  Bierce,  40  Barb.  117,  §  108. 
V.  Mister,  7  C.  &  P.  66,  §  50. 
V.  Terrell,  16  Ga.  20,  §  102. 
Boothby  v.  Railroad  Co.  51  Me.  318,  §  76. 

V.  Scales,  27  Wis.  626,  §  127. 
Bonito  t'.  Mosquera,  2  Bosw.  427,  §  282. 
Boulston  V.  Sandif  ord.  Skin.  279,  §  295. 
Bowes  V.  Tibbets,  7  Me.  457,  §  328. 
Bo^vman  v.  Hilton,  11  Ohio,  303,  §  294. 
V.  Smiley,  31  Penn.  St.  225,  § 

28. 
V.  Wathen,  2  McLean,  376,  §§ 
354,  380. 
Boyd  V.  State,  2  Humph.  39,  §  207. 
Boyer  v.  Pack,  2  Denio,  107,  §  114. 


TABLE    OF    CASES. 


461 


Boyle  r.  Tamlyn^  9  D,&  E,430,  6  B.  & 

C.  329,  §  216. 
Boynton  r.  M.  M.  F.  Ins.  Co.  4  Met. 

216,  §  243. 
Boyson  r.  Coles,  6  ]\I.  &  Selw.  14,  §  280. 
Bracegirdle  v.  Orford,  2  Maule  &  Sel. 

77,  §  174. 
Bradbury  r.  Gilford,  53  Me.  99,  §§  209, 

212,  230. 
Bradish  v.  Schenck,  8  Jolms.  151,  §§ 

331,  338. 
Bradley  v.  Arnold,  10  Yt.  382,  §  158. 
Bradley  v.  Eea,  14  Allen,  20,  §  155,  163. 
Bradley's  Fisli  Co.  v.  Dudley,  37  Conn. 

136,  §  3(8. 
Brand  v.  Abbott,  42  Ala.  499,  §  324. 
Brand  v.  H.  R.  Co.  Law  Bep.  4  H.  L. 

171,  §  CI. 
Bray  r.  Railway  Co.  57  111.  514,  §  85. 
c.  Mayne,  1  Gow.  1,  §  101. 
i:  Wheeler,  29  Yt.  514,  §  314. 
Brazier  v.  Ansley,  11  Ired.  Law,  14,  § 

334. 
Brewer  v.  Crosby,  11  Gray,  29,  §  153. 
Brenner  v.  Bigelow,  8  Kan.  497,  §  303. 
Bricker  c.  Hughes,  4  Ind.  146,  §§  15, 

20. 
Bridges  v.  Purcell,  1  Dev.  &  Bat.  Law, 

492,  §  354. 
Briel  r.  Natchez,  48  Miss.  423,  §  404. 
Briggs  V.  HaU,  4  Leigh,  484,  §  :J47. 

V.  Eowe,  4  Keyes,  424,  §  271. 
Bringloe  v.  ISIorrice,  1  Mod.  210,  §§  102, 

104. 
Bronson  v.  Coffin,  108  Mass.  175,  §  216. 
Brooks  V.  Curtis,  4  Lans.  283,  §  377. 
Brooks  V.  N.  Y.  &  E.  K.  R.  Co.  13  Barb. 

594,  §§  80,  88. 
Brothers  v.  Cartter,  52  Mo.  375,  §  250. 
Brown  v.  Berry,  9  Coldw.  98,  §  373. 

V.  Bridges,  31  Iowa,  138,  §  228. 
V.  Carpenter,  26  Yt.  038,  §§  171, 

183. 
V.  Edgington,  2  IMann  &  Gran. 

279,  §§  125,  129,  133. 
V.   Hobui-ger,  52  Barb.    15,   §§ 

171,  183. 
V.  Lynn,  31  Penn.  St.  510,  §  150. 
V.  MaxweU,  6  Hill,  594,  §  261. 
V.  M.  &  P.  C.  R.  R.  Co.  21  Wis. 

39,  §  239. 
V.  Providence,  Etc.  R.  R.  Co.  12 

Gray,  55,  §§  84,  88. 
V.  Railroad  Co.  24  Wis.  39,  §  89. 
V.  Snell,  57  N".  Y.  286,  §  322. 
V.  S.  K.  Agr.  Soc.  47  Me.  275,  § 

14. 
V.  Waterman,  10  Cush.  117,  §  96. 
V.  WTiittemore,  44  IST.   H.    369, 
§327. 
Browne  v.  Johnson,  29  Tex.  43,  §§  97. 
V.  Kennedy,  5  Harr.  &  J.  195,  § 

396. 
V.  Trustees,  Etc.  37  INId.  108,  § 
402. 
BrowTiell  v.  Hawkins,  4  Barb.  491,  §  30. 
Bruce  r.  Davenport,  3  Keyes,  472,  §  110. 
Bruce  v.  IMathers,  2  Bibb,  294,  §  330. 
Brvant  v.  Craig,  12  Ala.  354,  §  324. 
Bryant  v.  Crosby,  40  Me.  9,  §  332. 


Buckingham  v.  Rogers,   Oliphant  on 

Horse,  90,  App.  455,  §  133. 
Buckley  r.  Howard,  35  Tex.  565,  §§  310, 
311. 
V.  Packard,  20  Johns.  421,  §  281. 
Buckmaster  r.  Cool.  12  111.  70,  §  227. 
Bucknan  >■.  Goddard,l'l  Pick.  71,  §  124. 
Budd  V.  Fairmaner,  8  Bing.  51,  §"§  118, 
122.  h       .  »>       , 

Bull  v.  Griswold,  19  111.  631,  §  332. 
Bullard  v.  Harrison,  4  Maule  &  S.  387, 

§370. 
Bullock  V.  Babcock,  3  Y'end.  391,  §  315. 

V.  Geomble,  45  111.  218,  §  245. 
Bump  V.  Sanner,  37  Md.  621,  §§  373,  374. 
Burge  V.  Stroberg,  42  Ga.  89,  §  123. 
Burger  v.  Kortwright,  4  Johns.  414,  § 

229. 
Burlerson  v.  Teeple,  2  G.  Greene,  542,  § 

228. 
Burnell  re  Lindon,  Ex  parte,  7  Jurist, 

110,  §§  50,  52. 
Burroughs  v.  Railway  Co.  15  Conn.  124, 
§70. 
V.  H.  R.  R.  Co.  2  ^'un.  R.  R. 
Case  30,  §  70. 
Burton  v.  Hughes,  2  Bing.  173,  §  192. 
Burton  f.  Young,  5  Harr.  (Del.)  233,  § 

118. 
Bush  V.  Bramard,  1  Cow.  78,  §§  88,  209. 

V.  ]Miller,  13  Barb.  482,  §  97. 
Butterfield  v.  Baker,  5  Pick.  522,  §  339. 
Butterlield  v.  Bm-roughs,  1  Salk.  211y 

§  121. 
Buxendm  v.  Sharp,  2  Salk.  662,  §  172. 
Byers  v.  Danley,  27  Ark.  77,  §  274. 
Byi'ne  t'.  Boadle,  33  L.  J.  Exch.  13;  9 

L.  T.  ]Sr.  S.  450,  §  62. 
By  water  v.  Richardson,  1  Ad.  &  E.  508, 

§§  120,  133. 


Cabot  V.  Winsor,  1  Allen,  546,  §  117. 
Caldwell  v.  IMurphy,  1  Duer.  233,  §  182. 
V.  N.  J.  S.  Co.  47  N.  Y.  282,  § 
293. 
Calkins  v.  Barger,  44  Barb.  424,  §  54. 
Callo  r.  Brouucker,  4  Car.  &  Payne, 

518,  §§  253,  256,  257. 
Camden  Etc.  Co.  v.  Belknap,  21  Wend. 

354,  §  292. 
Camden  Etc.  E.  R.  Co.  v.  Burke,  13 

^Yend.  611,  §  292. 
Campbell  r.  Bro-nm,  1  Grant,  (Pa.)  82, 
§  153. 
V.  Cooper,  34  X.  H.  49,  §§  66, 

104,  263. 
V.  Evans,  45  N.  Y.  356,  §  246. 
V.  Race,  7  Cush.  408,  ^  376. 
V.  Stakes,  2  Wend.  137,  §  315. 
r.  AYalker.  5  Yesey,  680,  §  285. 
Canfield  v.  Hard,  6  Conn.  184,  §  340. 
Canal  Commissioners  v.  Kempshall,  20 

Wend.  404.  §  380. 
Cannon  v.  Horsey,  1  Houston,  (Del.) 

440,  §  168. 
Canovar  v.  Cooper,  3  Barb.  115,  §  314. 
Canterbury  v.  Attorney  Genl.  1  Phil- 
lips, 300,  §  52. 


462 


TABLE    OF    CASES. 


Cardinal  v.  Edwards,  5  Nev.  36,  §  137. 
Carey  v.   Welsh,    Sup.    Ct.   Cal.    July 

Term,  1874,  §  34(3. 
Carlisle  v.  Cooper,  21  N.  J.  Eq.  576,  § 

394. 
Carpenter  v.  Blake,  60  Barb.  488,  §  140. 
V.  Branch,  13  Vt.  161,  §  101. 
V.  Carpenter,  8  Bush,  283,  § 

106. 
V.  Halsey,    57  N.  Y.  658,    § 
256. 
Carr  v.  L.  &  Y.  E.  E.  Co.  14  Eng.  L.  & 

E.  340,  §  291. 
Carrell  v.  Potter,  23  Mich.  377,  §  312. 
Carrillo  ?;.  Fenton,  Sup.  Ct.   Cal.  Oct. 

Term,  1874,  §  347. 
Carter  v.  Abbott,  33  Iowa,  180,   §§  110, 
118. 
V.  Black,  46  Mo.  384,  §  123. 
V.  Carter,  5  Bing.  409,  §  298. 
V.  Dow,  16  Wis.  298,  §§  169,  171. 
Gary  ?>.  Bertie,  2  Vern.  333,  §  321. 
Casad  v.  Hughes,  27  Ind.  141,  §  299. 
Casamajor  v.  Strode,  1  Coop.  Sel.  Cas. 

510,  §  117. 
Case  V.  Northern  Central  E.  E.  Co.  59 
Barb.  644,  §§  66,  73. 
V.  Carrol,  35  IST.  Y.  338,  §  318. 
Cash  V.  Hinkle,  36  Iowa,  623,  §  47, 117. 
Castor  V.  Aides,  1  Salk.  68,  §  329. 
Caswell  V.  Districh,  15  Wend.  379,  §§ 

ool,  338. 
Caiilkins  v.  Mathews,  5  Ivans.   191,  §§ 

150,  217. 
Cayzer  v.  Taylor,  10  Gray,  274,  §  149. 
Cecil  V.  P.  E.  E.  Co.  47  Mo.  246,  §§  87, 

238. 
Central  Etc.  E.  E.  Co.  v.  Lawrence,  13 

Ohio  St.  71,  §§  86,  239. 
Chadsey  v.  Green,  24  Conn.  562,  §  121. 
Chamberlain  v.  Dickey,  31  Wis.  68,  § 

109. 
Chamberlin  v.  Cobb,   32  Iowa,  162,  § 

95. 
Chambers  v.   Griffiths,   1    Esp.   150,   § 

117. 
Champion?;.  Plummer,  1  Bos.  &  Pul.  N. 
E.  252,  §  269. 
V.   Vincent,   20  Tex.  811,   § 
168. 
Chandler  v.  Grieves,  2  H.  Blackstone, 
Note  a,  606,  §i^  257,  260. 
V.  Hogle,  58  111.   46,   §§  284, 

286. 
V.  Lopus,  Cro.  Jac.  4,  §  124. 
Chandelor  v.  Thurston,  10  Pick.  205,  § 

338. 
Chanter  v.  Hopkins,  4  M.  &  W.  406,  § 

125. 
Chapel  V.  Bull,  17  Mass.  220,  §  297. 
Chapman  v.  Allen,  Cro.  Car.  271,  §  189. 
V.  Atlantic  Etc.  E.  E.  Co.  37 

Me.  92,  §  67. 
V.  N.  Y.  C.  E.  E.  Co.  33  N.Y. 

3fi9   S  238 
V.  Partridge,  5  Esp.  256,  §269. 
Chase  v.  Westmore,  5  Maule  &  Selw. 

180,  §§  143,  190,  294. 
Cheney  v.  Goodrich,  106  Mass.  566,  § 
130. 


Chesapeake  &  O.  C.  Co.  v.  Baltimore 
&  O.  E.  E.  Co.  4  Gill  &  Johns.   1.  § 
354. 
Chicago  &  Alton  E.  E.  Co.  v.  Quaint- 

ance,  58  111.  389,  §§  66,  72. 
Chicago  &  Alton  E.  E.  Co.  v.  McLaugh- 
lin, 47  111.  265,  §  84. 
Chicago,  Burlington,  &  Q.  E.  E.  Co.  v. 

Cauffman,  38  111.  424,  §§  85,  212. 
Chicago,  Biu-lington,  &  Q.  E.  E.  Co.  v. 
Dickson,  63  111.  151,  §  265.  , 

Chicago,  Burlington,  &  Q.  E.  E.  Co.  v. 

Stumps,  55  111.  367,  §  84. 
Chicago  &  North  Western  E.  E.  Co.  v. 

Barrie,  55  111.  226,  §§  78,  87,  90. 
Chicago  &  North  Western  E.  E.  Co.  v. 

Harris,  54  111.  528,  §§  79,  89. 
Chicago  &  Eock  Island  E.  E.    Co.  v. 

Eeid,  24  111.  144,  §  89. 
Chicago  &  South  Western  E.  E.  Co.  v. 

Swinney,  38  Iowa,  182,  §  33. 
Chicago  Etc.  E.  E.  Co.  v.  Tripplett,  38 

111.  482,  §  84. 
Chidley  v.  Churcb  Wardens,  32  L.  1'. 

(N.  S.)486,  §308. 
Chilcott  V.  Trimble,  13  Barb.  502,  §  31o. 
Child  V.  Chappell,  9  N.  Y.  246,  §  368. 

V.  Starr,  4  Hill,369,  §§  380,  398. 
Chilson  V.  Philips,  1  Vt.  41,  §  314. 
Chippendale  v.   L.  &  T.  E.  E.   Co.   7 

Eng.  L.  &  E.  .395,  §  292. 
Christenson  v.  A.  E.  Co.  15  Minn.  270. 
Christopher  v.  Austin,  11  N.Y.  216,  §  ;>47. 
Church  V.  Meeker,  34  Conn.  421,  §  49. 
Cincinnati  &  Zauesville  E.  E.    Co.  »;. 

Smith,  22  Ohio  St.  227,  §§  78,  85. 
Cincinnati,  H.  &  D.  E.  E.  Co.  v.  Wat- 

erson,  4  Ohio  St.  424,  §  83. 
Citizens'  Natl.  Bank  v.  Smith,  55  N.  H. 

593,  §  112. 
City  of  Norwich,  Case  of  the,  1  Ben. 

89,  §  293. 
City  of  St.  Louis  v.  Boffinger,  19  Mo. 
13,  §  147. 
V.  McCoy,  18  Mo.  238, 
§147. 
Clack  V.  White,  2  Swan,  (Tenn.)  .540, 

§406. 
Claflin  V.  Carpenter,  4  Met.  580,  §  36. 
Claflin?;.  F.  &  C.  Bank,  25  N.Y.  293, 

§318. 
Clancy  v.  Overman,  1  Dev.  &  Bat.  402, 

§330. 
Clark  V.  Baker,  11  Met.  186,  §  128. 
Clark  V.  Brown,  18  Wend.  231,  §§  2-30, 
232. 
V.  Faxton,  21  Wend.  153,  §  292. 
V.  Foot,  8  Johns.  421,  §  54. 
V.  Holden,  7  Gray,  8,  §  301. 
V.  Lewis,  34  111.  417,  §§  247,  248. 
V.  E.   &  S.   E.   E.  Co.  14  N.  Y. 
670,  §  291. 
Clarke  v.  Earnshaw,  1  Gow.  N.  P.  30, 

§351. 
Cleaveland  v.  Grand  T.  E.  E.  Co.  42 
Vt.  449,  §§  63,  70, 71,  77. 
Etc.  E.  E.  Co.  V.  Terry,  H 

Ohio  St.  570,  §  77. 
V.  E.  E.  Co.  35  Iowa,  220, 


TABLE    OF    CASES, 


463 


Cleland  v.  Thomto-n,  43  Cal.  437,  §  00. 
Clem  V.  IMartin,  34  Ind.  341,  §  3:36. 
Clements  v.  Lee,  47  Ga.  G25,  §  33. 
Clinton  v.  Myers,  4G  N.  Y.  511,  §  380. 
Cloud  V.  Hamilton,  11  Humph.  104,  § 

314. 
Coates  V.  Stephens,  2  M.  &  Rob.  157, 

§§  132,  133. 
Cockran  v.  Irlam,  2  M.  &  S.  301,  §  270. 

V.  State,  4G  Ala.  714,  §  330. 
Coddington  v.  Goddard,  82  Mass.  (IG 

Gray)  436,  §  268. 
Codman  v.   Freeman,   3  Cush.   306,   5 

30. 
Coe  V.  Walcottville  M.  Co.  35  Conn.  175, 

§377. 
Coffin  V.  Field,  7  Cush.  358,  §  247. 
Coffin  V.  Shaw,  3  Ware,  82,  §  313. 
Coggs  V.   Bernard,  2  Ld.  Eaym.  909, 

§289. 
Colden  v.  Eldred,  15  Johns.  220,  §§  225, 

246,  247. 
Cole  V.  Drew,  44  Vt.  49,  §§  396,  400. 

V.  Goodwin,  19  Wend.  251,  §  292. 
Coleman  v.  Haight,  14  La.  Ann.  564, 

§  299. 
Colketr.  Ellis,  Court  of  Com.  PI.  Phila. 

March,  1875,  §  277. 
CoUender  v.  Dinsmore,  55  N.  Y.  200, 

§47. 
Collins  V.  Bennett,  46  N.  Y.  490,  §  187. 
V.  Prentice,  15  Conn.  39,  §  371. 
Coltherd  v.  Puncheon,  2  Dowl.  &  Hy. 

10,  §  120. 
Columbia  M.  Co.  ?;.  Holter,  1  Mon.  T. 

296,  §  386. 
Columbus  V.  Dahn,  36  Ind.  330,  §  404. 
Comerford  v.   Dupuy,   17  Cal.  308,  §§ 

211,  214,  244,  246. 
Commissioners  of  Washington  Park, 

Ex  parte,  62  N.  Y.  131,  §  403. 
Commonwealth  v.  Alger,  7  Cush.  53, 
§353. 
V.  Atkinson,  8  Phila. 

375,  §§  327,  329. 
V.  Baird,  1  Ashm.  267, 

S.  P.  §  329. 
V.  Brooks,  9  Gray,  303, 

§§  201,  205. 
V.  Campbell,  33  Penn. 

St.  380,  §  288. 
V.  Falvev,   108  Mass. 

304,  §  201. 
v.  Jennings,  1  Browne, 

(Pa.)  197. 
V.  Jones,  3  Serg.  &  R. 

158,  §  328. 
V.  Leach,  1  Mass.  59, 

§§  194,  201. 
V.  Metropolitan  R.  R. 
Co.  107  Mass.  236, 
§66. 
V.  Ruggles,    6   Allen, 

588,  §  13. 
V.  Smith,  2  Allen,  517, 

§205. 
V.  Sowle,  9  Gray,  304, 

§205. 
V.  Taylor,  5  Binn.  277. 
§  194. 


Commonwealth  v.  Tewksbury-,  11  Mot. 
55,  §  353. 
V.  Walden,  3  Cush.  5.".8, 

§§  201,  202. 
V.  Wiibanks,  10  Serg. 
&  R.  416,  §  329. 
Comstock  r.  Des  IMoines,  Etc.  R.  R.  Co. 
32  Iowa,  37t),  §§  78,  85,  88, 

V.  Scales,  7  Wis.  160,  §  32. 
Concklin  ?'.  Havens,  12  Johns.  314,  §  :!49. 
Conderman  r.  Smith,  41  l'.arb.  404,  §  29. 
Cougar  V.   Chamberlain,  14  Wis.   258, 

§118. 
Congdeu  7^  Sanford,  Hill  &  Den.  19G, 

§23. 
Congreve  /•.  Evetts,  26  Eng.  L.  &  Eq. 

493,  §  15. 
Conkey  v.  Bond,  36  N.  Y.  429,  §  318. 
Conklin  v.  Parsons,  1  Chand.  240,  §  228. 
Connaughton  v.  Sands,  32  Wis.  387,  § 

27. 
Conner  v.  AVinton,  8  Ind.  315,  §  140. 
Conwell  V.  Smith,  8  Ind.  530,  §  95. 
Cook  V.  Champlain  Transportation  Co. 
1  Denio,  101,  §§  73,  167. 
r.  Gregg,  46  N.  Y.  439,  §§  245,  246. 
t'.  Railroad  Company,    Sup.  Ct. 
Wis.  Apr.  1875,  §  82. 
Cooper  V.  Cole,  38  Vt.  191,  §  3G0. 

V.  Maupin,  G  Mo.  C24,  §  371. 
r.  Phillipps,  4  Car.  &  Pavne, 

581,  §  260. 
V.  Willomat,  1  C.  B.  672,  §  98. 
Coiieland  v.  Insm-ance  Co.  6  Pick.  203, 

§285. 
Copeman  t\  Gallant,  M.  S.  Rep.  Trin. 

1716,  §  283. 
Corbett  v.  Brown,  8  Bing.  33,  §  111. 
Cornell  v.  Dean,  105  Mass.  435,  §  348. 
Corning  v.  Colt,  5  Wend.  253,  §  108. 

V.  Troy  Factory,  39  Barb.  311, 
§385. 
Corpe  V.  Overton,  10  Bing.  252,  §  255. 
Cortelyou  v.  Lansing,  2  Caine's  Cas. 

200,  §  32. 
Cortelyou  w.Van  Brundt,  2  Johns.  357, 

§  396. 
Corwin  v.  N.  Y.  &  E.  R.  R.  Co.  13  N. 

Y.  44,  §§  81,  84,  88,  238,  241. 
Cory  V.  Cory,  1  Ves.  Sr.  19,  §  107. 
Costigau  V.  M.  &  H.  R.  R.  Co.  2  Denio. 

(il2,''§  259. 
County  Commissioners  r.  Humphrey, 

47  Ga.  565,  §  403. 
County  V.  W.  &  Ferry  Co.  U.  S.  C"t. 

Feb.  1875,  §  391. 
Cowden  v.  Wright,  24  AVend.  429,  §  315. 
Cowling  V.  Higginson,  4  M.  &  W.  245, 

§§  374,  375. 
Coy  V.  Utica  Etc.  R.  R.  Co.  23  Barb. 

643,  §  81. 
Craddock  v.  Riddlesbargher,  2  Dana, 

205,  §  24. 
Cragin  v.  N.  Y.  C.  R.  R.  Co.  51  N.  V. 

G3,  §  291. 
Crest  V.  Jack,  3  AVatts,  239,  §  363. 
Crews  V.  Pendleton,  1   Leigh,  297,   §§ 

17,  21. 
Crippen  r.  Morss,  49  N.  Y.  63,  §  363. 


464 


TABLE    OF   CASES. 


Cripps  r.  Eeade,  6  T.  E.  GOG,  §  124. 
("rocker  r.  Mann,  3  Mo.  475,  §  244. 
Croft  V.  ^Uison.  4  B.  &  Aid.  590,  §  159. 
Crosby  r.  "Wadsworth,  G  East,  602,  § 

r>7. 

Cross  t'.  Gardner,  1  Shower,  G8,  §  124. 
Crossley  r.  Ligbtowler,  L.  E.  3  Eq.  279, 

$;«4. 
Crouch  r.  Culbreath,  11  Eich.  (Law)  9, 

§  133. 
Crouch  r.  L.  &  N.  W.  E.  E.  Co.  25  Eng. 

L.  &  B.  287,  §  295. 
Cumberland  Coal  &  Iron  Company  r. 

Sherman,  30  Barb.  553,  §  318. 
Cuming  v.  Prang,  24  Mich.  514,  §§  395, 

399. 
Cumins  t-.Wood,  44  111.  416,  §  97. 
Cummings  v.  Barrett,  10  Cush.  186,  § 

386. 
Cureton  v.  "Watson,  3  S.  C.  (X.  S. )  451, 

§323. 
(Jurry  r.  Jenkins,  Hardin,  (Ky.)  493,  § 

328. 
Cushman  v.  Smith,  :>4  Me.  247,  §  353. 
Cutter  V.  Powell,  6  T.  E.  320,  §  255. 
Cutts  v.  Hussey.  15  Me.  237,  §  243. 
Cussons  V.  Skinner,  11  M.  &  W.  161,  §§ 

253,  256,  257. 

D. 

Dalby  v.  Pullen,  3  Sim.  29,  §§  117,  246. 
Dalgleish    r.    Crandy,  Cam.    &   Nor. 

Conf.  Eep.  22,  §  302. 
Dale's  Case,  Cro.  Eliz.  44,  §  124. 
Daley  v.  Eailway  Company,  26  Conn. 

591,  ^  150. 
Dame  v.  Dame,  38  X.  H.  429,  §  25. 
Daniel  r.  North,  11  East,  372,  §  3(j5. 
Daniels  v.  Chaftin,  28  Iowa,  327,  §  393. 

V.  Pond,  21  Pick.  367,  §  4(5. 
Danner  v.  S.  C.  E.  E.  Co.  4  Eich.  329, 

§§  85,  239. 
Darling  v.  Eodgers,  7  Kansas,  592,  §§ 

211,  214. 
Daubigny  v.  Duval,  5  T.  E.  604,  §  281. 
Davis  V.  I).  &  M.  E.  E.  Co.  20  Mich.  105, 
§251. 
V.  Campbell,  23  Vt.  236,  §  225. 
V.  Eyton,  7  Biug.  154,  §  308. 
V.  Getclicll,  50  Me.  G04,  §  38,5. 
V.  Maxw(;ll,  12  .Met.  286,  §  254. 
V.  Walker,  GO  111.  452,  §  147. 
Day  i\  Everett,  7  ISIass.  144,  §§  313,  325, 
326. 
V.  Pool,  52  N.  Y.  416,  §  115. 
V.  Eaguet,  14  Uinn.  27.3,  §  127. 
Dawes  v.  Howard,  4  Mass.  97,  §  310. 
Dawson   v.  Midland    E.   E.   Co.   Law 

Eep.  8,  Exch.  8,  §  88. 
Dean  i'.  Morey,  33  Iowa,  120,  §§  115, 
116. 
V.  S.  E.  E.  Co.  22  N.  H.  316,  § 
2.'58. 
I^earing  ?-.  Moore,  26  Ala.  586,  §  174. 
Dearth  r.  T'.aker,  22  Wis.  73,  §  176. 
Deaver  r.  Eice,  4  Dev.  &  Batt.  431,  §  .302. 
De  Bouchont  v.  Goldsmid,  5  Ves.  211,  § 

280. 
Decker  v.  Gammon,  44  Me.  322,  §  172. 


Deerfield  v.  Arms,  17  Pick.  41,  §  380. 
Deezc,  Ex  parte,  1  Atk.  228,  §  190. 
Dc  France  v.  Spencer,  2  Greene,  (Iowa) 

4G2,  §  54. 
Defreeze  v.  Trumjjer,  1  Johns.  274,  § 

124. 
Delaney  v.  Eoot,  99  Mass.  646,  §  331. 
Demi  v.  Bossier,  1  Penu.  224,  §  36. 
Deming  v.  Foster,  42  N.  H.  174,  §  125. 
De  INIott  V.  Hagerman,  8  Cow.  220,  §  338 
Dennis  v.  Belt,  30  Cal.  247,  §  158. 

V.  Clark,  2  Cush.  ;m,  §  31(5. 
Denny  v.  Correll,  9  Ind.  72,  §  1.54. 
Denton  v.  Leddell,  23  N.  J.  Eq.  (J4,  §  364. 
Derocher  v.  Continental  JNlills,  ,58  ]Me. 

217,  §  312. 
Derrickson  v.  Si^ringer,  5  Harring.  (5 

Del. )  21,  §  367. 
Deshler  v.  Beers,  32  111.  .368,  §  286. 
Devitti'.  Pac.  E.  E.  Co.  50  Mo.  302,  §  251. 
Devoue  v.  Fanning,  2  Johns.  Ch.  260. 

§318. 
Dewey  r.  C.  Etc.  E.  E.  Co.  31  Iowa,  373, 

§§  8G,  2.37. 
Do'M'itt  r.  Duncan,  46  Cal.  342,  §  114. 
D'Eyncourt  v.  Gregory,  L.  E.  3  Eq.  382, 

§  308. 
Deyo  V.  Stewart,  4  Denio,  101,  §  83. 
Dickenson  v.  Lilwall,  1  Stark.  128,  §  269. 
Dickey  v.  Linscott,  20  Me.  453,  §§  255. 
2(;0. 
r.  Tennison,  27  ]Mo.  373,  §  405. 
Dickinson  v.  Follett,  1  M.  &  Eob.  299, 
§133. 
V.  Grand  Junction  Canal  Co. 
7  Exch.  282,  §  390. 
Dickson  r.  McCoy,  39  N.  Y.  401,  §  176. 
Dhmnock  r.  N.  S.  E.  E.  Co.  4  Fost.  & 

F.  1058,  §§  63,  71. 
Doane  v.  Covel,  56  Me.  527,  §  327. 

V.  Dunham,  65  HI.  512,  §  119. 
Docker  r.  Somes,  2  INIy.  &  K.  665,  §  324. 
Dockliam  v.  Parker,  9  Me.  137,  §  339. 
Dodson  V.  Mock,  4  Dev.  &  B.  146,  §§ 

174,  183. 
Doggett  V.  Emerson,  3  Story,  700,  §  126. 
Doe  V.  Derry,  9  C.  &  P.  494,  §§  332,  333. 
V.  Hull,  2  Dow.  &  E.  38,  §  361. 
V.  Jones,  4  B.  &  Adol.  12(),  §  301. 
r.  Paul,  3  C.  &  P.  613,  §  34(). 
r.  AVandlass,  7  T.  11.  117,  §  346. 
V.  "Wood,  2  Barn.  &  Aid.  724,  §  364. 
Donnellan  v.  Eead,  3  B.  &  Adol.  899, 

§83. 
Donovan  v.  Vicksburg,  29  Miss.  247, 

§  245. 
Dou])leday  v.  Newton,  9  How.  71,  §  245. 
Doupe  ?•.  Genin,  45  N.  Y.  119,  §  299. 
Drake;  v.  P.  &  E.  E.  E.  Co.  51  Peun.  St. 

240,  §  239. 
Dresser  v.  Ainsworth,  9  Barb.  619,  §  124. 
Drew  ?'.  Spaulding,  45  X.  H.  472,  §  246. 
Drinkwater  r.  Goodwin,  Cowp.  254,  § 

274. 
Dubuque  ?•.  Benson,  23  Iowa,  248,  §  397. 
V.  ISIaloney,  9  Iowa,  450,  §  397. 
Duffy  V.  Eailway  Co.  2  Hilt.  49(),  §  83. 
1  )ulany  /•.  Dickerson,  12  Ala.  (JOl,  §  338. 
I  )umas.  Ex  parte,  1  Atk.  234,  §  283. 
Dumont  i\  Smith,  4  Denio,  320,  §  245. 


TARLE    f)V    CASKS. 


405 


Dunbar  v.  Williams,  M  .lolins.  240   6S 
2(iO,  329.  '^^ 

Duncan  v.  Eaihvay  Co.  2  Rich.  Ci;?,  §  !KS. 
Duulap  r.  Suydoi-riT  Barb,  fliil,  §  171 
Dunlop  r.  Stetson,  4  Ma.son,  34'.>,  §  ;i!)8. 
Dyer  r.  Hargrave,  10  Ves.  JKXJ,  §  121. 
Dysart  v.  Leeds,  2  Penn.  St.  488,  §  228. 


E. 

Eagan  v.  CaU,  34  Penn.  St.  23G,  §  161. 
Eames  v.  Salem,  Etc.  R.  R.  Co.  98  Mass. 

500,  §§  88,  240. 
Earl  V.  Van  Alstine,  8  Barb.  030,  §  177 
Easloy  v.  Craddock,  4  Rand.  (Va.)423, 

§  329. 
East  Kingston  v.  Towle,  48  N.  H.  57, 

§  132. 
Easter  v.  Railway  Co.  14  Ohio  St.  48 

§§  81,  83. 
Eastman  v.  Rice,  14  IMe.  419,  §  246. 

V.  Sandborn,  3  Allen,  594,  § 
101.  '        '  i 

Eaton  V.  Truesdail,  52  111.  307,  §  275. 
Eaves  v.  Dixon,  2  Taunt.  .'543.  §  133. 
Edgerton  r.  Page,  20  N.  Y.  281,  §  347. 
Edic  V.  Crim,  10  Barb.  445,  §  124. 
Edmonson  v.  Stevenson,  Bvdl,  N.  P.  8, 

§  202. 
Edson  V.  Weston,  7  Cow.  278,  §  95. 
Edwards  v.  Carr,  13  Gray,  234,  §  97. 
Edwards  v.  Davis,  16  Johns.  281,  §  317. 
Elliot  V.  Fitchburg  R.  R.  Co.  10  Cush. 

191,  §  388. 
Ellis  V.  EUis,  39  Me.  526,  §  231. 

V.  Loftus  I.  Co.  L.  R.  10  C.  P.  10 

§177. 
V.  Railroad  Company,  2  Ired.  Law, 
138,  §§  70,  85. 
Elting  V.  Clinton  Mills  Co.  36  Conn. 

296,  §  308. 
Elton  V.  Brogden,  4  Camp.  281,  §§  132, 
133. 
V.  Jordan,  1  Stark.  127,  §  133. 
Elwes  V.  Maw,  3  East,  38,  §§  43,  309. 
Emans  v.  TurnbuU,  2  Johns.  314,  §  49. 
Emerson   v.  Rowland,   1    Mason,  51, 

§259. 
Emmerson  v.  Heelis,  2  Taunt.  38,  §  35. 
Emmet  v.  Norton,  8  Car.  &  P.  510,  §  105. 
Emmons  v.  Lord,  18  Me.  351,  §  200. 
Esson  V.  McMasser,  1  Kerr,  N.  B.  501,  § 

380. 
Etheridge  v.  Osborn,  12  Wend.  529,  § 

347. 
Evans  v.  Fitchburg  E.  R.  Co.  Ill  Mass. 
142,  §  291. 
V.  Merriwcather,  3  Scam.  492,  §§ 

387,  388. 
V.  Potter,  2  Gall.  13,  §  280. 
V.  Roberts,  5  Barn.  &  Cress.  829, 

§§  25,  35. 
V.  Soiile,  2  M.  &  Selw.  1,  §  2{f2. 
Evansville  v.  Evans,  37  Ind.  229,  §  404. 
Everard  v.  Hopkins,  2  Bolster,  332,  § 

142. 
Evertson  v.  Sawyer,  2  Wend.  507,  §  304. 
Eyre  v.  Shaftsbury,  2  P.  Will.   118,  § 
321. 

Farm—so. 


I'. 

Fabian  r.Win.ston.  Cro.  I 
Fahm.  Rcichart.  8  Wis.  . 
Fairbank.4  c.  CliildH.  14  N.  n    i.,,^  ^  j  ii 
Fairchild  v.    IJcntli-y,  .'K)  Barli. 'u7.  ( 

177. 
Fairfield  i-.  Williani.M.  4   Mhhh.  427    i 

397. 
Faris  v.  Lewis,  2  B.  Mon.  :r75.  {«  HC, 

155.  * 

Farmers'  Etc-.  Bank  r.  Spramii-.  K  -N 

Y.  vm,  §§  28-1.  2K<i. 
Farrant  r.  Farraiit.  Stip.  Ct.  <*iil.  Mav 

•  1875,  §  :m. 
V.  Tlionipson.  r,  B.  \r  AM.  ««. 
Farrar  v.  Staokpolc,  6  Me.  I.',7,  §  .its. 
Farrcllr.  Farrell,  3  Houst.  (Del.)  tKB, 

§  314. 
Faulkner  v.  Ilebard.  26  Vt.  452,  §  108. 
Favrot  r.  Mettlor,  21  Iji.  Ann.  220.  5 

2it!». 
Fawcett  i".  Railroad  Coranany,  16  Q.  U. 

010,  §  84. 
Faxon  v.  I^Iansficld,  2  Ma9.H.  147. 
Fay  V.  ;Mu/.zey,  13  Gray,  5;!,  §  4-1. 
Feild  r.  Farrington,  lo'W.dl.  HI,  §  284. 
Felton  V.  Simp.son,  11  Irwl.  Liw,  81.  § 

305. 
Fenner  v.  Duplock,  2  Bing.  10,  §  :,<>l. 
Fenton  r.  Clark,  11  Vt.  n.'>7,  §§  2.'k).  2»)0. 
Ferrall  v.  Kent,  4  fHll.  209,  §  Xr\. 
Ferrea  r.  Knippe,  28  ( 'al.  M.i,  §  :iw. 
Fero  V.  Railway  (.'o.  22  N.  Y.  2<J9,  §  72. 
Field  V.  Brackett,  .'>6  Mc.  123.  §  Jit!. 

V.  ISIayor  Etc.  0  N.  Y.  179.  §  ;!22. 
V.  N.  Y.  Central  R.  R.  Co.  .'«  N. 
Y.  339,  §§  6.1,  (Ai,  70,  72.  73. 
Fillieul  V.   Armstrong,  7  Ad.   &  Ell. 

557,  §  257. 
Filliter  r.  Phippard,  12  Q.  R.  Ml,  §  82. 
Finley  r.  Langston.  12  Mo.  120,  §  59. 
Fisli  r.  Skut,  21  Barb.  .3.>.{,  §  15;{. 
Fisher  v.  lieard,  .(2  Iowa,  :^^i.  6  4^1 
i:  Clark,  41  Barb.       '    "  '   " 
r.  Knit/,  ;>  KaiH. 
/■.  Pollard,  2  Ilea. I      .  14, 

§  1-!. 
Fitch  V.  NewbeiTV,  1  Doug.  (Mich.)l,  § 
2!4. 
r.  Paoilic  R.  R.  Co.  45  Mo.  :G2,  5§ 
(;:?,  0(j,  73,  77. 
Fitchburg  R.  R.  Co.  r.  C.  M.  F.  Ins.  •'o. 

7Grny,  oi.  §(;(!. 
Fleming  r.  Gooding,  10  Bing.  549. 
Fletcher  v.  Morey,  2  Story,  .Vj5,  §  28;;. 
»".  Rylands'   I.aw  lU-p.  3  H.  L 
;j,30.  §  5(5. 
Florence  S.  M.  Co.  v.  Warfonl.  1  Swe«- 

ny.  4Xi,  §  281. 
Fluck  V.  Toll.macho,  1  C.  &  P.  5.  6  :m. 
Flvnn  >'.  San  Francisco  Etc.  U.  K.  Co. 40 

Cal.  14,  §§  71,  77. 
Fonda  r.  Borst,  2  Alib.  Ct.  App.  !>«•<•. 

155,  §§  373.  374. 
Foote  V.  Colvin,  3  .lohns.  21<>. 

V.  Storrs,  2  Barb.  ;r.'6.  §  97. 
Ford  r.  Foril,  3  Wis.  :f.»9.  §  24.V 

V.  McVav.  .V>  111.  ll'.»,  §§  32i;.  327. 
Forman  v.  Miller,  5  Mcl^^an,  218,  §  1(36. 


466 


TABLE    OF    CASES. 


Foster  v.  Charles,  6  Bing.  39G,  §  111. 

V.  Essex  Bank,  17  Mass.  479,  §§ 

96,  2G6,  315. 
V.  Fletcher,  7  INIon.  534,  §  36. 
V.  Swaaey,  2  Woodb.  &  Minot, 
217,  §  126. 
Forth  V.  Simpson,  13  Q.  B.  G82,  §  137. 
Fortune  v.  Lingham,  2  Campb.  416,  § 

161. 
Fowler  v.  HoUenbeck,  9  Barb.  309,  § 

329. 
Fox  V.  Beebe,  24  Conn.  271,  §  231. 
Frammel  v.  Little,  16  Ind.  251,  §  178. 
Frank  v.  Harrington,  31  Barb.  415,  §§ 

15,  20,  25. 
Frankford  &  B.  T.  Co.  v.  P.  &  T.  E.  R. 

Co.  54  Penn.  St.  345,  §  61. 
Franklin  v.  Globe  Ins.  Co.  52  Mo.  461, 
§§  118,  120. 
V.  Palmer,  50  111.  202,  ^  303. 
V.  Wells,  6  K.  I.  422,  §  230. 
Franz  n.   Hilterbrand,  45  Mo.    122,    § 

145. 
Frazier  v.  Eailroad  Co.   38  Penn.   St. 
104,  §  251. 
V.  Harvey,  34  Conn.  471,  §  101. 
V.   Nortinus,   ;>4   Iowa,   82,   §§ 
246,  401. 
Freemantle  v.  L.  &  N.  W.  R.  R.  Co.  10  C. 

B.  (N.  S.)89,  §63. 
French  v.  French,  8  Ohio,  214,  §  107. 
Freto  V.  Brown,  4  Jlass.  675,  §  314. 
Frink  v.  Schroyer,  18  111.  416,  §  182. 
Fritz  V.  Milwaukee  Etc.  R.  R.  Co.  34 

Iowa,  337,  §  234. 
FuUam  v.  Stearns,  30  Vt.  443,  §  400. 
Fuller  V.  Brown,  11  IMet.  440,  §§  255, 2G0. 
Furnis  ?;.  Leicester,  Cro.  Jac.  474,  §  124. 


Gage  V.  Bates,  40  Cal.  385,  §  346. 
Gall  V.  Comber,  7  Taunt.  558,  §  276. 
Gallager  v.  Brunei,  6  Cow.  346,  §  112. 
Galpin  v.  Railway  ComiJany,  19  Wis. 

604,  §  85. 
Gandy  v.  Chicago  Etc.  R.   R.  Co.   30 

Iowa,  420,  §§  63,  66. 
Garabran  v.  Vaughn,  2  B.  Mou.  327,  § 

245. 
Gardiner  v.  Gray,  4  Camp.  144,  §  127. 
Gardner  v.  Gardner,  6  Cush.  117,  §  3G0. 
V.  Keteltas,  3  Hill,  330,  §  296. 
V.  Ogden,  22  N.  Y.  327,  §  318. 
V.  Rowe,  5  Russ.  262,  §  283. 
(Garland  v.  Hilborn,  23  Me.  442,  §  339. 
Garment  v.  Bars,  2  Esp.  673,  §  133. 
Garrett  v.  Freeman,  5  Jones'  Law,  78, 
§54. 
V.  C.  &  N. W.  R.  R.  Co.  36  Iowa, 
121,  §  70. 
Gartside  v.  Outley,  58  HI.  210,  §  296. 
Gaskill  V.  Trainer,  3  Cal.  334,  §  346. 
Georgia  R.  R.  &  Bank  Co.  v.  Anderson, 

33  Ga.  110,  §§  88,  234,  236.      . 
Georgia  R.  R.  &  Bank  Co.  v.  Monroe,  49 

Ga.  373,  §  88. 
Gerrard  v.  Cooke,  2  Bos.  &  P.  N.  R. 
109,  §  376. 


Gerzebeck  v.  Lord,  4  Vroom,  240,  §  299. 
Gibbons  v.  DUlingham,  5  Eng.  (Ark.  )9, 

§§  15,  18. 
Gibbons  v.  Ogden,  9  Wheat.  1,  §  147. 
Gibbs  V.  Benjamin,  45  Vt.  124,  §  37. 
Giblin  v.  ISIcMullen,  Law  Rep.  2  P.  C. 

317,  §  149. 
Gibson  u.  Pacific  R.  R.  Co.  46  Mo.  163, 
§§  250,  251. 
V.  S.  E.  R.  R.  Co.  1  Fost.  &Fin. 
23,  §  70. 
Giffert  v.  West,   33  Wis.  G17,   §§  123, 

129. 
Gifford  V.  Kollock,  3  Ware,  45,  §  313. 
Gillet  V.  Balcom,  G  Barb.  370,  §21. 
Gill  V.  ]Middleton,  105  Mass.  477,  §  140. 
Gilman  v.  E.  &  N.  A.  R.  R.  Co.  60  Me. 
2.35,  §§  85,  240. 
V.  Williams,  7  Wis.  329,  §§  27, 
28. 
Gilmore  v.  Holt,  4  Pick.  263,  §  247. 
Gilson  V.  Gwinn,  107  Mass.  126,  §  294. 
Ginn  v.  Ginn,  38  Ind.  526,  §  313. 
Gladfelter  v.  Walker,  Ct.  of  App.  Md. 

July,  1875,  §  390. 
Gloucester  Bank  v.   Salem  Bank,   17 

Mass.  33,  §  114. 
Good  V.  Dodge,  3  Pittsb.  (Pa.) 557,  §382. 
Goodman  v.  Gay,  15  Penn.  St.  188,  §  176. 
Goodrich  v.  Jones,  2  HiU,  142,  §§  44, 45, 
228. 
V.  Willard,  7  Gray,  183,  §  189. 
Goodtitle  v.  Alker,  1  Burr.  133,  §  400. 
Gordon  v.  Harper,  7  Term.  R.  9,  §§  100, 
159. 
V.  Potter,  17  Vt.  350. 
Gore  V.  Gibson,   13  Mees.  &  W.  623, 

§107. 
Gorman,  v.  Railway  Company,  26  Mo. 
441,  §  88. 
V.  Railway  Company,  38  Iowa, 
131,  §  291. 
Gould  V.  Boston  Duck  Co.  13  Gray,  442, 
§^  386,  394. 
V.  Hudson  Etc.  R.  R.  Co.  6  N. 
Y.  522,  §  49. 
Graeber  v.  Derwin,  43  Cal.  495,  §  182. 
Graham  v.  DuckwaU,  8  Bush,  12,  §§270, 

273. 
Grand  Trunk  R.  R.  Co.  v.  Latham,  63 

Me.  177,  §  267. 
Grand  Trunk  R.  R.  Co.  v.  Richardson, 

U.  S.  Sup.  Ct.  January,  1876,  §  69. 
Granger  v.  Swart,  1  Woolw.  88,  §  392. 
Grannis  v.  Cummings,  25  Conn.   165, 

§57. 
Grant  v.  Chase,  17  Mass.  443,  §  366. 

V.  Fletcher,  5  Barn.  &  Cress.  436, 
§269. 
Graves  v.  Moses,  13  Minn.  3.35,  §  100. 
Great  Western  R.   R.  Co.  v.  Helm,  27 

111.  199,  §  89. 
Green  v.  Armstrong,  1  Denio,  550,  §  37. 
Green  v.  Chelsea,  24  Pick.  71,  §  375. 
V.  Holling-sworth,  5  Dana,  173. 
V.  Swift,  47  Cal.  536,  §  379. 
Gregory  v.  Nelson,  41  Cal.  278,  §  38(i. 
Grice  v.  Randall,  23  Vt.  239,  §  246. 
Grieff  v.  Cowguill,  2  Disney,  58,  §  274. 
Griffin  v.  Colver,  16  N.  Y.  489,  §  129. 


TABLE   OF    CASES. 


467 


Grigsby  v.  Clear  Lake  W.  Co.  40  Cal. 

39(),  §  394. 
Grinnell  v.  Cook,  3  Hill,  491,  §  137. 
Grinnell  ^,^^Vells,  7  M.  &  Gr.  1041,  §  31G. 
Gross  V.  Kierski,  41  Cal.  Ill,  §  117. 
Guest  V.  Opdyke,  2  Vroom,  552,  §  332. 
Guild?;.  Baldridge,  2 Swan,  (Term.) 295, 

§  114. 
Guilderland  v.  Knox,  5  Cow.  363,  §  327. 
Guyer  v.  Stratton,  29  Conn.  421,  §  SS- 


H. 


Hadley  v.  Baxendal,  9  Exch.  341,  ,  129. 
Hadley  v.  Clinton  Im.  Co.  13  Ohio  St. 

502,  §  110. 
Hague  V.   O'Connor,  1   Sweeney,   (N. 

Y.)  472,  41  How.  Pr.  287,  §  271. 
Haight  V.  Badgeley,  15  Barb.  499,  5  2fi3. 
Haille  v.  Smith,  1  Bos.  &  Pul.  563,  §  274. 
Hair  v.  Little,  28  Ala.  236,  §  98. 
Haire  v.  Reese,  7  Phil.  (Pa.)  138,  §  140. 
Hale  V.  Clark,  19  Wend.  498,  §§  232, 245. 
Hall    ?'. Hollander,  7  Dowl.  &  By.  133, 
§  316. 
V.  Pickard,  3  Camp.  187,  §  159. 
V.  Rogerson,  Oliphant  on  Horses, 

444,  §  133. 
r.  Rowley,  2  Root.  (Conn.)  161, 
§  329. 
Halloran  v.  N.  Y.  &  H.  R.  R.  Co.  2  E. 

1).  Smith,  257,  §  241. 
Halsey  v.  McCormick,   18  N.  Y.   147. 

^  392. 
Hammond  v.   Corbett,  50  N.  H.    501, 
§313. 
V.  "South  E.  R.  R.  Co.  Maid- 
stone    Spring     Assizes, 
1845,  §  72. 
Hancock  v.   Day,  McMullan  Ch.  298, 

§  363. 
Handford  v.  Palmer.  2  Bro.  &  Bing.  359, 

§  101. 
Hanlon  r.  Ingram,  3  Iowa,  81,  §§  50,  54. 
Hannibal  P>ridge  Co.  v.  Schaubacker, 

49  ISIo.  555,  §  403. 
Hanson  r.  Busse,  45  111.  496,  §  127. 
Harback  v.  Boston,  10  Cush.  259,  §  367. 
Hardenbergh   v.  Bacon,    33  Cal.   377, 

§285. 
Hare  v.  Celey.   Cro.  Eliz.   143,  §§  331, 
338. 
V.  Pearson,  4  Ired.  Law,  77,  §  334. 
Harlow  v.  Stinson,  60  Me.  347,  §  216. 
Harney  v.  Owen,  4  Blackf.  337,  §  327. 
Harriman  v.  Fitield,  36  Vt.  341,  §  245. 
Harrington  v.  Snyder,  3  Barb.  380,  §§  94, 

95,  97. 
Harris  v.  Miller,  1  Meigs,  158,  §  354. 

V.  Packwood,  3  Taunt.  264,  §§  98, 

292. 
V.  Sturtevant,  29  Me.  366,  §  230. 
Harriss?;.  Mabry,  1  Ired.  Law,  240,  §266. 
Hart  V.  Western  R.  R.  Corp.  13  Met. 
99,  §§  66,  69,  75. 
',,.  Hammett,  18  Vt.  127,  §  131. 
Hartford  v.  Jackson,  11  N.  H.  145,  §  99. 
Hartley  v.  Cummings,  5  Com.  B.  247, 
(57  E.  C.  L.  R.  247)  §  263. 


Hartley  v.  Wharton,  11  Ad.  &  Ell.  934, 

§  312. 
Hartshorn  w.  Schoff,  51 N.  H.  316,  §  232 
Harvey  v.  Epes,  12  Gratt.  153,  §  98. 
Hatch  V.  Dwight,  17  Mass.  289,  §  398. 

V.  Hart,  40  N.  H.  97,  §  337. 
Haslem   v.    Lockwod,    37    Conn.    500, 

§49. 
Hassard  v.  Rowe,  11  Barb.  24,  §  323. 
Havana  v.  Biggs,  58  111.  483,  §  404. 
Hawes  v.  Forster,  1  M.  &  Rob.  368,  § 

269. 
Hawkins  v.  Appleby,  2  Sandf.  421,  § 
181. 
V.  Gilbert,  19  Ala.  54,  §  254. 
V.  Pemberton,  51  N.  Y.  198, 
§§  115,  118,  120. 
Hay  V.  Cumberland,  25  Barb.  594,  §  347. 
Haycrat't  v.  Creassy,  2  East,  92,  §  112. 
Hayner  v.  Smith,  63  111.  432,  §  296. 
Hays  V.  Crist,  4  Kans.  350,  §  107. 
Headen  v.  Rust,  39  111.  186,  §  212. 
Headlam  v.  Headley,  Holt  N.  P.  463, 

§396. 
Heath  v.  Ricker,  2  Me.  408.  §  246. 

V.  White,  5  Conn.  235,  §  355,  358. 
Henderson  v.  Barnewall,  1  Y.  &  Jerv. 

387,  §  270. 
Hendrick  v.  Cook,  4  Ga.  241,  §  386. 
Heinkin  v.  Barbrey,  40  Ga.  249,  §  284. 
Heiskell  v.  Gross,  7  Phila.  (Pa.)  317,  § 

394. 
Henry  v.  Dubuque  &  P.  R.  R.  Co.  2 

Iowa,  288,  §§  211,  214. 
Henry  v.  Railway  Company,  30  Vt.  638, 

§76. 
Henry  v.  Southern  Pacific  R.  R.  Co. 
Sup.  Ct.  Cal.  Aug.  1875,  §§  71,  72,  75. 
Herrick  v.  Gary,  65  111.  101,  §  156. 
Herring  v.  W.  &  R.  R.  R.  Co.  10  Ired. 

Law,  402,  §§  70,  85. 
Herold  v.  Meyers,  20  Iowa,  378,  §§  211, 

214. 
Herskell  v.  Bushnell,  37  Conn.  36,  §  348. 
Hesse  v.  Knippel,  1  Mich.  (K  P.)  109, 

§  140. 
Hewlins  v.  Shippam,  5  Barn.  &  Cress. 

221. 
Hickman's  Case,  4  Harring.  (Del.)  580, 

§406. 
Hickock  V.  Buck,  22  Vt.  149,  §  99. 
Hicks  V.  Hankin,  4  Esp.  114,  §  269. 
Higgins  V.  Dewey,  107  Mass.  494,  §  56. 
Highley  v.  Barron,  49  Mo.  103,  §  312. 
Hill  V.  North,   34  Vt.  604,    1  Smith's 
Lead.  Cas.  221,  §  121. 
i\  State,  43  Ala.  335,  §§  195,  197. 
Hinman  v.  Chicago  Etc.  R.  Co.  28  Iowa, 

491,  §  237. 
Hincklev  v.  Arey,  27  Me.  362,  §§  269, 
270. 
V.  Emerson,  4  Cow.  351,  §§ 
171,  183. 
Hinde  v.  Smith,  6  Lans.  N.  Y.  464,  §  284. 
Hindle  v.  Pollitt,  6  Mees.  &  Welb.  529, 

§44. 
Hinds  V.  Barton,  25  N.  Y.  544,  §  72. 
Hine  v.  Munson,  32  Conn.  219,  §  246. 
Hiner  v.  Jeanpert,  65  lU.  428,  §§  403, 
404. 


468 


TABLE    OF    CASES. 


Hitchcock  V.  Giddings,  Daniel's  Exch. 

Rep.  1,  §  114. 
Hobbs  V.  Wetherwax,  38  How.  Pr.  385, 

§331. 
Hobson  V.  State,  44  Ala.  380. 
Hoffman  v.  Noble,  6  Met.  68,  §  282. 
Hogdon  V.  Waldron,  9  N.  H.  06,  §  137. 
Hogins  V.   Plympton,    11    Pick.   97,   §• 

118. 
Hoit  V.  Stratton  Mills,  54  N.  H.  109,  § 

25. 
Holbacb  v.  Warner,  Cro.  Jac.  665,  §  216. 
Holder  v.  Coates,  1  M.  &  Malk.  112, 
§354. 
V.  Shattuck,  34  Vt.  336,  §  400. 
Holladay  v.  Marsh,  3  Wend.  142,  §§  88, 

167,  209,  212,  215,  241,  401. 
Holland  v.  Hodgson,  L.  R.  7  C.  P.  328, 

§  308. 
Hbllbrook    v.  Wright,   24  Wend.    169, 

§274. 
HoUey  v.  Townsend,  10  How.  Pr.  125,  § 

271. 
HoUister  v.  HoUister,  35  Conn.  241,  §§ 
217,  230. 
V.  Nowlen,   19  Wend.  234,  § 
292. 
HoUyday  v.  Morgan,  28  L.  J.  Q.  B.  9, 

§133. 
Holmes  v.  Goring,  2  Bing.  76,  §  371. 
Holroyd  v.  Marshall,  9  Jur.  K.  S.  213, 

§31. 
Holt  V.  Robertson,  McMullan's  Ch.  475, 

§  363. 
Holton  V.  Smith,  7  N.  H.  446,  §  282. 
Home  Ins.  Co.  v.   Sherman,  46  N.  Y. 

370,  §  296. 
Homer  t'.  Thwing,  3  Pick.  492,  §  100. 
Hooks  V.  Smith,  18  Ala.  338,  §  352. 
Hooksett  V.  Concord  R.  R.  Co.  38  N. 

H.  242,  §  75. 
Hopkins  v.  Mason,  42  How.  Pr.  115, 

§  403. 
Horn  V.  Railroad  Company,  35  N.  H. 

169,  §  78. 
Home  V.  M.  &  O.  R.  R.  Co.  1  Coldwell, 

72,  §  239. 
Horsefall  v.  Mather,  Holt  N.  P.  7,  §  94. 
Horton  v.  Green,  66  N.  C.  596,  §  123. 
Hortsman  v.  Railway  Company,  18  B. 

Mon.  218,  §  78. 
Hough  V.  Doylston,  4  Brews.  (Pa.)  833, 
§383. 
V.  Richardson,  3  Story,  690,  § 
126. 
Flougham  v.  Harvey,  33  Iowa,  203,  § 

404. 
Houghton  V.  Mathews,  3  Bos.  &  Pul. 

489,  §  277. 
House  V.  Fort,  4  BlacM.  293,  §  123. 
Howard  v.  Babcock,  21  111.  259,  §  101. 
V.  Doolittle,  3  Duer,  464,  §  299. 
V.  Grover,  28  Me.  97,  §  135. 
V.  Hoey,  23  Wend.  350,  §  125. 
V.  Ingersoll,   13    How.  381,   § 
379. 
Howe  V.  Whited,  21  La.  Ann.  495,  §  274. 
Hoy  V.  Sterrett,  2  Watts,  337,  §  3G5. 
Hoyt  V.  Gelston,  13  Johns.  141,  §  159. 
V.  Wildfire,  3  Johns.  518,  §  259. 


Hubbard  r.  Bell,  54  111.  110,  §  380. 
Hubbell  I'.  Wheeler,  2  Aiken,  359,  §  339. 
Huddleston  v.   Lowell  M.  S.   Co.  106 

Mass.  282,  §  251. 
Hudson  V.  Worden,  39  Vt.  382,  §  327. 
Hull  V.  Sac.  Val.  R.  R.  Co.  14  Cal.  387, 

§§  63,  66,  70. 
Hunt  V.  Haskell,  24  Me.  329,  §  294. 
V.  Hoyt,  20  111.  544,  §  182. 
V.  The  Otis  Company,  4  ]\Iet.  465, 

§254. 
V.  Thompson,  3  Scam.  180,  §  310. 
Huntingdon  v.  Hall,  36  Me.  501,  §  124. 
Hurd  v.  West,  7  Cow.  752,  §  159. 
Hurding  v.  Lomax,  28  Eng.  L.   &  E. 

543,  §  256. 
Hurlbut  V.  Leonard,  Brayt.  (Vt.)  201,  § 

365. 
Huson  V.  Young,  4  Lahs.  63,  §  367. 
Huttemeier  v.  Albro,  18  N.  Y.  48,  §  368. 
Hutchins  v.  Olciitt,  4Vt.  549,  §  137. 
Hutchinson  v.  Bowker,  5  Mees.  &  W. 
535  §  121 
V.  Ford,  9  Bush,  318,  §§  30, 
32. 
Hutton  V.  Bragg,  2  Marsh.  345,  §  294. 

V.  Warr'en,  1  M.  &  W.  466,  §  42. 
Huyetl  V.  Phil.  Etc.  R.  R.  Co.  23  Penn. 

St.  373,  §§  62,  70. 
Hyde  v.  Stone,  9  Cow.  230,  §  334. 


Iba  V.  Hannibal  &  St.  J.  R.  R.  Co.  45 
Mo.  469,  §  238. 

Illinois  Central  R.  R.  Co.  v.  Arnold,  47 
111.  173,  §§  89,  236. 

Illinois  Central  R.  R.  Co.  v.  Baker,  47 
111.  295,  §§  87,  88. 

Illinois  Central  R.  R.  Co.  v.  Dickerson, 
27  HI.  55,  §  90. 

Illinois  Central  R.  R.  Co.  v.  McClel- 
land, 42  111.  355,  §  56. 

Hlinois  Central  R.  R.  Co.  v.  Middles- 
worth,  4(i  111.  495,  §  85. 

Illinois  Central  R.  R.  Co.  v.  Mills,  42 
111.  407,  §§  61,  63,  66,  70,  73. 

Illinois  Central  R.  R.  Co.  v.  Swearingeu, 
47  111.  206,  §  236. 

Illinois  Central  R.  R.  Co.  v.  Whaleu, 
42  HI.  396,  §§  85,  236. 

Indianapolis  Etc.  R.  R.  Co.  v.  Cald- 
well, 9  Ind.  397,  §  237. 

Indianapolis  Etc.  R.  R.  Co.  v.  Harter, 
38  Ind.  557,  §  241. 

Indiana]5olis  Etc.  R.  R.  Co.  v.  Love, 
10  Ind.  556,  §  251. 

Indianapolis  Etc.  R.  R.  Co.  v.  Mc- 
Brown,  46  Ind.  229,  §§  79,  85,  87. 

Indianapolis  Etc.  R.  R.  Co.  v.  McClure, 
26  Ind.  370,  §  85. 

Indianai:)olis  Etc.  R.  R.  Co.  v.  Meek, 
10  Ind.  502,  §§84,  234,  237. 

Indianapolis  Etc.  R.  R.  Co.  v.  Para- 
more,  31  Ind.  143,  §  76. 

Indianapolis  Etc.  R.  R.  Co.  v.  Petty, 
25  Ind.  413,  §§  81,  83. 

Indianapolis  Etc.  R.  R.  Co.  v.  Snelling, 
16  Ind.  435,  §  89. 


TABLE    OF    CASES. 


469 


Indianapolis  Etc.  R.  R.  Co.  v.  Town- 
send,  10  Ind.  38,  §§  84,  234,  237. 

Indianapolis  Etc.  R.  R.  Co.  v.  Whar- 
ton, 13  Ind.  509,  §  85. 

Ingraham  v.  Hutchinson,  2  Conn.  584, 
§  387. 

Isaack  v.  Clark,  2  Bulst.  306,  §  352. 

Isbell  V.  X.  Y.  &  N.  H.  R.  R.  Co.  27 
Conn.  393,  §  150. 


J. 

Jacobs  V.  Kolff,  2  Hilton,  133,  §  271. 

V.  Latoiir,  5  Bing.  1-30,  §§  137, 294. 
Jackson  v.  Brownell,  1  Johns.  267,  § 
3.37. 
V.  Chicago  Etc.  R.  R.  Co.  31 

Iowa,  176,  §§  62,  63. 
V.  Cummins,  5  M.  &  W.  342, 

§§  137,  189. 
r.  Hathaway,   15  Johns.  447, 

§§  367,  397,  398. 
V.  Kipp,  3  Wend.  230. 
V.  Rutland  &  B.  R.  R.  Co.  25 

Vt.  150,  §§  78,  88,  240. 
V.  Rogers,  2  Shower,  327,  §  295, 
V.  Sears,  10  Johns.  435,  §  323. 
V.  Stacey,  Holt,  N.  P.  455,  § 

374. 
V.  Sternberg,  20  Johns.  49,  § 

297 
V.  Tibbits,  3  Wend.  341,  §  301. 
V.  Wetherill,  7  S.  &  R.  480, 
§115. 
Jackson's  Case,  1  Tucker,  [KY.l  71,  § 

324. 
James  v.  Jenkins,  34  Md.  1,  §  374. 

V.  Tibbetts,  60  Me.  557,  §§  212, 
214,  557. 
James'  Case,  8  Ves.  337,  §  318. 
Janes  v.  Shore,  1  Stark.  426,  §  117. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Apple- 
gate,  10  Ind.  49,  §§  2.34,  237. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Avery, 

31  Ind.  277,  §  80. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Cald- 
well, 19  Ind.  397,  §  241. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Chen- 

oweth,  30  Ind.  306,  §  87. 
Jeffersonville  R.  R.  Co.  v.  Dougherty, 

10  Ind.  549,  §§  234,  237. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Nichols, 

30  Ind.  321,  §§  81,  84. 
Jeffersonville    Etc.     R.    R.     Co.     v. 

O'Connor,  37  Ind.  95,  §§  79,  234. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Ross, 

37  Ind.  545,  §  80. 
Jeffersonville  Etc.  R.  R.  Co.  v.  Sulli- 
van, 38  Ind.  262,  §  234. 
Jeff.  Mad.  &  Indianapolis  Etc.  R.  R. 

Co.  V.  Brevoort,  30  Ind.  324,  §  237. 
Jeffi-ey  v.  Bigelow,  13  Wend.  518,  §§ 

146,  155. 
Jenckes  v.  Cook,  9  R.  I.  520,  §  304. 
Jenkins  v.  Hopkins,  8  Pick.  346,  §  597. 
V.  Turner,  1  Ld.  Raym,  §§  109. 
175. 
Jennings  v.  Camp,  13  Johns.  94,  §  254. 
Jenney  v.  Alden,  12  Mass.  375,  §  314. 


Jerman  v.  Mathews,  2  Bail.  271,  §  367 
Jesser  v.  Gifford,  4  Burrow,  2141,  §  301 
Job  V.  Harlan,  13  Ohio  St.  485,  §  153. 
Johnson  v.   Oppenheim,   12  Abb    Pr 
N.  S.  454,  §  296. 
V.  Oppenheim,  43  How.   Pr 

433,  §  296. 
V.  Silsbee,  49  K  H.  543,  §  314 
V.  State,  37  Ala.  457, §§  lOT,  205 
Johnston  v.  Fessler,  7  Watts,  48,  §  108. 
V.  Usborne,  11  Ad.  &  E.  549, 
§274. 
Joliff  V.  BeEdel,  R.  &  M.  1.36,  §  1.33. 
Jones  (1.  Adler,  34  IMd.  440,  §  272. 

V.  Bright,  5  Bing,  5.'53,  Smith's 
Lead.  Cas.  182,  §§  120,  125, 
161. 
V.  Central  R.  R.  Co.  21  Ga.  104, 

§§  234,  236. 
V.  Flint,  10  A.  &  E.  753,  §  37. 
V.  Hart,  2  Salk.  440,  §  142. 
V.  Perry,  50  N.  H.  1.34,  §  217. 
V.  Radway  Company,  67  K  C. 

122,  §  85. 
V.  Richardson,  10  Met.  481,  §  30. 
V.  Thomas,  8  Blackf.  428,  §  21. 
Judkius  V.  Walker,  17  Me.  38,  §  255. 
Judson  V.  Etheridge,  1  Cromp.  &  Mees. 
743,  §  189. 
V.  Reardon,  16  Minn.  431,  §  202. 
V.  Wass,  11  Johns.  525. 


K. 


Karr  v.  Parks,  44  Cal.  46,  §§  182,  316. 
Kearney  v.  Holmes,  6  La.  Ann.  373,  § 

256. 
Keates  v.  Cadogan,  2  Eng.  L.  &  E.  320, 

§125. 
Keefe  v.  Railway  Company,  Sup.  Ct. 

Minn.  Jan.  1875,  §§  53,  61,  64,  150, 170. 
Keen  v.  Sprague,  3  Me.  77,  §  314. 
Keenan  v.  Cavanaugh,  44  "Vt.  268,  §§ 

212,  214,  401. 
Keeney  v.  Grand  Trunk  R.  R.  Co.  59 

Barb.  104,  §  295. 
Keith  V.  Bradford,  39  Vt.  34,  §  225. 
Keliher  v.  Railroad  Co.  107  Mass.  411, 

§§  85,  240. 
Kellenberger  v.  Foresman,  13  Ind.  475, 

§  299. 
Kellogg  V.  Railway  Company,  26  Wis. 

223,  §§  74,  75,  76. 
Kelley  v.  Davis,  49  IST.  H.  187,  §  310. 
KeUy  V.  Solari,  9  Mees.  &  W.  54,  §  114. 
V.  Tliayer,  34  How.  164,  §  322. 
V.  Tilton,  2  Abb.  Ct.  App.  Dec. 
495,  §  172. 
Kenedy  v.  Dubuque  &  P.  R.  R.  Co.  2 

Iowa,  521,  §§  211,  214. 
Keney  v.  Ward,  36  How.  Pr.  255,  §  176. 
Kennedy  v.  Dubuque  Etc.  R.  R.  Co.  2 

Iowa,  521,  §  237. 
Kennedys.  Strong,  14  Johns.  128,  §§  279, 

281 
Kerr'u.  O'Connor,  03  Penn.  St.  341,  §§ 

153,  154. 
Kertscliacke  v.  Ludwig,  28  Wis.  430, 

§172. 


470 


TABLE    OF    CASES. 


Kerwhaker  v.  Cleaveland,  Etc.  R.  R, 

Co.  3  Ohio  St.  172,  §§  86,  211,  239. 
Ketchum  v.  Stolp,  15  111.  341,  §  225. 
Kiddell  v.  Barnard,  9  W.  &  M.  670,  §§ 

130,  132,  133. 
Kidder  v.  West,  3  Lev.  167,  §  347. 
Killmore  v.  Hewlett,  48  N.  Y.  569,  § 

333. 
Kinder  v.  Shaw,  2  Mass.  398,  §  281. 
King  V.  Arnesby,  3  B.  &  Aid.  584,  §  326. 
V.  Bryant,  2  Haywood,  {N.C.)591, 

§107. 
V.  Inhabitants  of  Bow,  4  Maule 

&  S.  383,  §  329. 
V.  Kline,  0  Penn.  St.  318,  §§  171, 

183. 
V.  Pease,  4  B.  &  Ad.  30,  §  65. 
V.  Pearce,  1  Leach,  527,  (2  East, 

P.  C.  1072)  §  205. 
V.  Richards,  6  Whart.  418,  §  294. 
V.  Stock,  2  Taunt.  340,  §  333. 
Kingsley  v.  Holbrook,  45  K.  H.  313,  §  25. 
Kinloch  v.  Craig,  3  Term  R.  119,  §  294. 
Kip  V.  Mervim,  52  N.  Y.  542,  §  299. 
Kittredge  v.  Elliott,  16  N.  H.  11. 
Kline  v.  Jacobs,  68  Penn.  St.  57,  §  299. 
Knap  V.  Wallace,  41  N".  Y.  477,  §  271. 
Knapp  V.  Alvord,  10  Paige,  205,  §  274. 
Knell  V.  United  States  &  B.  S.  S.  Co. 

IJ.  &S.  (N.  Y.)  423,  §293. 
Knight  V.  Abert,  6  Penn.  St.  472,  §§  78, 

150,  148. 
lijiight  V.  Luce,  110  Mass.  588,  §§  265, 

266. 
Knight  V.  New  Orleans  Etc.  R.  R.  Co. 

15  La.  105,  §  238. 
Knowles  v.  Nunns,  14  L.  T.  (X.  S.)  592, 

§§  146,  155. 
Kjiox  v.  Tucker,  48  Me.  373,  §§  212,  214. 
Kreel  v.  Kirkham,  47  111.  344,  §§  331, 

333 
Kroy  V.  R.  R.  Co.  32  Iowa,  357,  §  251. 
Krutz  V.  Fisher,  8  Kans.  90,  §  286. 
Kuntz  V.  Kinney,  33  Wis.  510,  §  27. 
Kutter  V.  Smith,  2  Wall.  491,  §  308. 


Lack  V.  Lenard,  4  Car.  &  P.  106,  §  83. 
Lachman  v.  Wood,  25  Cal.  147,  §  314. 
Lade  v.  Shepherd,  3  Strange,  1004,  §§ 

399,  375. 
Lafayette  Etc.  R.  R.  Co.  v.  Griger,  34 

Ind.  198,  §  88. 
Lafferty  v.  RaUway  Co.  44  Mo.  291,  §§ 

80,  238. 

Lake  Shore  Etc.  R.  R.  Co.  v.  Perkins. 

Lamb  v.  Railway  Company,  40  N.  Y. 

271,  §  293. 

V.  Hicks,  11  Met.  496,  §§  224,  230. 

Lamborn,  Bait.  &  O.  R.  R.  Co.  adsit, 

12  Md.  257,  §  68. 
Lamsberry  v.  Snyder,  31  IST.  Y.  514,  § 

347. 
Lane  v.  Catton,  1  Salk.  18,  §§  139,  142. 
V.  Ironmonger,   13  Mees.   &  W. 

236,  §  105. 
V.  King,  8  Wend.  584,  §  22. 
Langdon  v.  Moore,  8  Barb.  358,  § 


Langher  v.  Pointer,  15  B.  &  C.  554,  § 

265. 
Langley  v.  Hilton,  34  Me.  322,  §  230. 
Lansing  v.  Stone,  .37  Barb.  18,  §§  52,  70. 
Lantry  v.  Parks,  8  Cow.  03,  §  254. 
L' Apostrophe  v.  Plaistrier,  1  P.  Wms. 

318,  (lAtk.  175)  §283. 
Larkin  v.  Taylor,  5  Kans.  433,  §  214. 
Lashbrook  v.  Patten,  1  Duval,   316,  § 

315. 
Lawrence  v.  Housatonio  Etc.  R.  R.  Co. 
29  Conn.  390,  §  182. 
V.  Mangiatti,  41  Cal.  138,  § 

172. 
V.  White,  5  McLean,  108,  § 
106. 
Lawton  v.  Kiel,  61  Barb.  558,  §  127. 

V.  Rivers,  2  McCord,  445,  §  371. 
Lawton  v.  Salmon,  1  H.  Bl.  259,  §  44. 
Leavitt  v.  Thompson,  52  N.  Y.  62,  §  246. 
Leddard  v.  Kain,  28  Bing.  183,  §  118. 
Lee  V.  Atkinson,  Yelv.  172,  §§  99,  100. 

V.  Risdon,  7  Taunt.  191,  §  43. 
Leighworth  ?;.  Leifec,   Sup.  Ct.  Penn. 

Jan.  1875,  §  129. 
Leleg  V.  Brush,  35  Conn.  419,  §  394. 
Lenoir  v.  Armitage,  Holt,  N.  P.  197,  § 

41. 
Lennox  v.  Railroad  Company,  32  Iowa, 

151,  §  90. 
Lendville  v.  Marks,  58  111.  371,  §  147. 
Leonard  v.  Fowler,  44  N.  Y.  289,  §  127. 
V.  Wilkins,  9  Johns.  233,  §§ 
171,  183. 
Lespard  v.  Van  Kirk,  27  Wis.  152,  §  125. 
Lewis  V.  Brheme,  33  Md.  412,  §  276. 
V.  Peake,  7  Taimt.  153,  §  131. 
Libhart  v.  Wood,  1  Watts  &  Serg.  265, 

§256. 
License  Tax  Cases,  5  Wall.  462,  §  147. 
Lichtenhein  v.  Boston  &  P.  R.  R.  Co. 

11  Cush.  70,  §  187. 
Ijford's  Case,  11  Coke,  48,  §  37. 
Lilly  V.  Elwin,  11  Q.  B.  755,  §  254. 
Lin  wood's  Case,  8  Ves.  343,  §  318. 
Little  i'.  Lathrop,  5  Green,  356,  §§  88, 

209. 
Leishman  v.  White,  1  AUen,  489,  §  347. 
Livingston  v.  Reynolds,  2  Hill,  157,  § 

305. 
Lloyd  V.  Colston,  5  Bush,  587,  §  272. 

V.  Mathews,  51  N.  H.  124,  §  271. 

Lock  V.  Railway  Company,  15  Minn. 

350,  §  80. 

V.  St.   Paul  &  P.   R.   R.   Co.   15 

Minn.  350,  §  240. 

Lockman  v.  Rex,  20  Penn.  St.  467,  §  19. 

Loeschman  v.  Machin,  2  Starke,  311, 

§§  98,  100,  352. 
Logan  V.  Gedney,  38  Cal.  581,  §§  211, 
214,  217. 
V.  Mathews,  0  Barr.  418,  §  97. 
Long  V.  Higginbotham,  38  Miss.  772, 

§  124. 
Loughbridge  v.  Harris,  42  Ga.  500,   § 

403. 
Longmeade  v.  Holliday,  6  Ex.  764,   § 

142. 
Loquen  o.  Linke,  4  E.  D.  Smith,  63,  § 
176. 


TABLE    OF    CASES. 


471 


Lord  V.  Wormwood,  49  Me.  282,  §S  212, 
214.  '>.s       . 

Lownsdale  v.  City  of  Portland,  Deady, 

1,  §  404. 
Louisville  &  F.  E.  R.  Co.  v.  Ballard,  2 

Mete.  177,  §§  86,  87,  237. 
LouisvUle  &  F.  R.  E.  Co.  v.  Hedges,  9 

Bush,  §  291. 
Louisville  &  F.  R.  R.  Co.  v.  Milton,  14 

B.  Mon.  75,  §  237. 
Louisville  &  F.  R.  R.  Co.  v.  Wainscott, 

3  Bush,  149,  237. 
Lovejoy  v.  Jones,  10  Foster,  165,  §  352. 
Loveson  v.  Galland,  45  Cal.  8,  §  31. 
Low  V.  IVIiller,  3  Gratt.  205,  §  334. 
Luby  V.  Cox,  2  Harr.  184,  §  327. 
Lucas  V.  Worswick,  1  Mood.  &  Rob. 

293,  §  114. 
Lumley  v.  Gye,  2  Ell.  &  Bl.  216,  §  263. 
Lyke  v.  Van  Lenver,  1  N".  Y.  515,  §  172. 
Lyman  v.  Gipson,  18  Pick.  422,  §  209. 

V.  Hall,  11  Conn.  177,  §  354. 
Lynch  v.  Murdin,  1  Q.  B.  29,  §  64. 
Lyons'  Case,  22  La.  Ann.  627,  §  317. 
Lyons  v.  Martin,  8  Ad.   &  El.  512,  § 

266. 
Lyon  V.  Myrick,  105  Mass.  75,  §  209. 


M. 


Mack  V.  Patchin,  42  N.  Y.  167,  §  296. 
Macon  &  Western  R.  R.  Co.  v.  Baber, 

42  Ga.  300,  §  85. 
Macon  &  AVestern  R.  R.  Co.  ik  Davis, 

13  Ga.  68,  §§  234,  236. 
Macon  &  Western  R.  R.  Co.  v.  McCon- 

nell,  27  Ga.  481,  §  66. 
Moctiers  v.  Frith,  6  Wend.  103,  §  108. 
Mad  River  &  L.  E.  R.  R.  Co.  v.  Bar- 
bour, 5  Ohio  St.  541,  §  251. 
Maguire  v.  Maguire,  7  "Dana,  181,  §  321. 
Mahan  v.  Brown,  10  Wend.  261,  §  145. 
Major  V.  Pulliam,  3  Dana,  582,  §  174. 
Maitby  v.  Dihel,  5  Kans.  430,  <j  217. 

V.  Harwood,  12  Barb.  473,  §  329. 
Manning  r.  Smith,  6  Conn.  289,  §  365. 
Mayre  v.  Dyche,  42  Miss.  347,  §  302. 
Margetson  r.  Wright,  7  Bing.  605,  §§ 

121,  133. 
Marker  v.  Marker,  4  Eng.  L.  &  E.  95,  § 

301 
Marsh  v.  Home,  5  B.  &  C.  322,  §  98. 

V.  Jones,  21  Vt.  278,  §§  176,  179. 
V.  Ruleson,  1  Wend.  514,  §  254. 
Martin  v.  Bigelow,  2  Aik.  184,  §  394. 
V.  Black,  21  Ala.  721,  §  108. 
'V.  Railway  Company,  23  Wis. 

437,  §  63. 
V.  Sullivan,  53  N.  Y.  615,  §  272. 
Mason  v.  Amerigage,  1  Mass.  442,  §  281. 
t).   Chappelle,   15  Gratt.   572,   § 

161. 
V.  Keeling,  12  Mod.  336,  §§  169, 

172. 
V.  Tovm  of   Ellsworth,  32  Me. 
271,  §  182. 
Mastero  v.  PoUie,  2  Roll.  141,  §  354. 
Masters  v.  Town  of  Warren,  27  Conn. 
293,  §  182. 


Mathey  v.  Chapman,  40  Conn.  382.  6§ 

49,  379. 
Mathews  v.  St.  Paul  Etc.  Railway  Co 
18  Minn.  434,  §§  81,  82. 
V.  Bliss,  22  Pick.  53,  §  112. 
V.  Frisbio,  2  E.  D.  Smith,  90, 
§183. 
Mathewson  v.  Perry,  37  Conn.   435,  § 

313. 
Maul  V.  Wilton,  2  Harr.  443,  §  52. 
IMauldin  v.  Armistead,  14  Ala.  702,  § 

15. 
Maverick  v.  Lewis,  3  McCall.  211,  §  338. 
Maxen  v.  Landrum,  21  La.  Ann.  366,  § 

274. 
Maxwell  v.  Palmerston,  21  Wend.  407, 

§§  171,  183. 
May  V.  Burditt,  58  Eng.  Com.   L.  96,  § 

172. 
Mayer  v.  Childs,  47  Cal.  142,  §  113. 
Maynard  v.  Buck,  100  Mass.  40,  §§  97. 
149. 
'-.  Fireman's  F.  Ins.  Co.  M 
Cal.  48,  §  206. 
Mayor  v.  Howard,  6  Ga.  213,  §§  97,  !»8, 

352. 
McArthur  v.  Sears,    21  Wend.   198,   § 

289. 
McBride  v.  Lynd,  55  111.  441,  §§  212,401. 
V.  McBride,  1  Bush,  15,  §  313. 
McCalmot  v.  Whittaker,  3  Rawle,  84. 
SIcCarthy  v.  Young,  6  Hurlat  &  N.  329, 

§180. 
McCaskill  v.  Elliott,  Strobh.  (S.  C.)  196, 

§  176. 
McCombe  v.  Davis,  6  East,  538,  §  281. 
McCord  V.  Ochiltree,  8  Blackf.  15,  §321. 
McCormick  v.  Tate,  20  111.  334,  §  212. 
McCoy  V.  Archer,  3  Barb.  323,  §  134. 

V.  Cal.  P.  R.  R.  Co.  40  Cal  432, 

§236. 
V.  Central  P.  R.  E.  Co.  40  Cal. 
532,  §§  80,  85. 
McCready  v.  S.  C.  R.  R.  Co.  2  Strobh. 

Law,  356,  §  61. 
McCready  v.  R.  R.  Company,  2  Strobh. 

Law,  356,  §  70. 
McCummers  v.  Chicago  Etc.  E.  R.  Co. 

33  Iowa,  187,  §  (36. 

McDarmell  v.  Railway  Company,  115 

Mass.  664,  §§  85,  90. 
McDowell    V.    Railway    Company,   37 

Barb.  195,  §  89. 
McDowle's  Case,  8  Johns.  328,  §  327. 
McDuffy  V.  EaUroad  Co.  52  N.  H.  7;!0, 

§  295. 
McDum  r.  Des  Moines  Etc.  R.  R.  Co. 

34  Iowa,  467,  §  404. 

McEh'oy  V.  Parker,  Circuit  Ct.  Han- 
cock Co.  111.  Oct.  1874,  §  162. 

McFarland  v.  Newman,  9  Watts,  55,  § 
115. 

McGlynn  ».  Brodie,  31  Cal.  376,  §  251. 

McGrath  v.  Herndon,  2  T.  B.  Mon.  82, 
§330. 

McGrath  v.  N.  Y.  C.  Etc.  R.  R.  Co.  59 
N.  Y.  468,  §  66. 

McGrew  v.  Forsyth,  31  Iowa,  179,  §  123. 
V.  Stone.  53  Penn.  St.  436,  §§ 
52,  54. 


472 


TABLE    OF    CASES. 


McGregor  v.  Brown,  10  N.  Y.  114,  §  305. 
Mclntyre  v.  N.  Y.  C.  K.  E,.  Co.  37  N. 

Y.  287,  §  85. 
McKay  v.  Brysou,  5  Ired.  Law,  21G,  § 

330. 
McKee  v.  Perchment,  G9  Penn.  St.  342, 

§  374. 
McKenzie  v.  Lampley,  31  Ala.  526,  §  24. 
V.  McLeod,  10  Bing.  385,  § 
266. 
McKniglit  V.  Walsh,  23  N.  J.  Eq.  130,  § 

310. 
McLauchlin  v.  Lomas,  3  Strobb.  Law, 

85,  §  100. 
McManus  v.  Crickett,  1  East,  106,  §§ 
266,  315. 
V.  L.  &  Y.  Rw.  Co.  2  Hurl.  & 
Norm.  G93,  ^  291. 
McMillan  v.  M.  S.  &  K.  I   K.  R.  Co.  16 
Mich.  109,  §  292. 
V.  Vanderlix),  12  Johns.  165, 
§254. 
McNevins  v.  Lowe,  40  111.  210,  §  135. 
McPheeters  v.  H.  &  St.  J.  E.  E.  Co.  45 

Mo.  22,  §  88. 
McRae  v.  Evans,  1  Dev.  &  B.  243,  §  174. 
Medbury  v.  Watrous,  7  Hill,  110,  §  255. 
Meibus  v.  Dodge,  Sup.  Ct.  Wis.  Oct. 

1875,  §  176. 
Mellish  V.  Motteux,  Peake,  N.  P.  115, 

§133. 
Memphis  Etc.  R.  R.  Co.  v.  Blakeney, 

43  Miss.  218,  §§  80,  238. 
Memphis  Etc.  R.  R.  Co.  v.  Orr,  43  ]Miss. 

279,  §§  81,  85,  88,  238. 
Menzell  v.  Railway  Company,  1  Dill, 

531,  §  292. 
Meredith  v.  Reed,  26  Ind.  334,  §§  176, 177. 
Merest  v.  Harvey,  5  Taunt.  442,  §  174. 
Merrilield  v.   Lombard,   13  Allen,  16, 

§385. 
Merritt  v.  O'Neil,  13  Johns.  477,  §  247. 
Michigan  Central  E.  E.  Co  i\  Mineral 
Springs  Mfg.  Co.  16  Wall.  319,  §§  292, 
293. 
Michigan  South.  Etc.  R.  R.  Co.  v.  Mc- 

Donough,  21  Mich.  165,  §  291. 
Middlebrook  v.  Corwin,  15  Wend.  169, 

§46. 
Middleton  v.  Findla,  25  Cal.  76,  §  272. 
Midland  Rw.  Co.  v.  Daykin,  17  C.   B. 

126,  §  88. 
Miller  v.  Bonsadon,  9  Ala.  317,  §  304. 
V.  Hepburn,  8  Bush,  320,  §  391. 
•  V.  Lapham,  44  Vt.  416,   §§  371, 
386. 
V.  Marston,  35  Me.  155,  §  189. 
V.  Martin,  16  Mo.  508,  §  54. 
V.  McBrier,  14  S.  &  R.  382,  §  304. 
Milligan  v.  Wehinger,  68  Penn.  St.  235, 

§§  211,  214,  232. 
Milliman  v.  Neher,  20  Barb.  38,  §  30. 
Millon  11.  Salisbury,  13  Johns.  211,  §  95. 
Mills  V.  Ashe,  16  Tex.  295,  §  352. 

V.  N.  Y.  &  H.  R.  R.  Co.  2  Robert- 
son, 326,  §  145. 
V.  Stark,  2  N.  H.  512,  §  246. 
]VIinor  v.  Deland,  18  Pick.  266,  §  209. 
Minshall  v.  Lloyd,  2  M.  &  W.  450,  §  308. 
]Vnsner  v.  Lighthall,  13  111.  609,  §  212. 


Mitchell  V.  Williams,  27  Ind.  62,  §  169. 
Mitten  v.  Faudrye,  Pop.  161,  §  169. 
Mixer  v.  Coburn,  11  Met.  559, '§  128, 
Mizen  v.  Pick,  3  Mees.  &  W.  481,  §  105. 
Mobile  &  Ohio  E.  E.  Co.  v.  Malone,  46 

Ala.  391,  §§  78,  235. 
Mockbee  v.  Gardner,  2  Harr.  &  Gill. 

176,  §  124. 
Montague  v.  Benedict,  3  Barn.  &  Cress. 

635,  §  105. 
Montague  v.  Espinasse,   1  Car.  &  P. 

357,  f  105. 
Monte  Allegre  Case,  9  Wlieat.  644,  §  272. 
Moody  V.  Buck,  1  Sandf .  304,  §  181. 
Moon  V.  Towers,  8  C.  B.  (N".  S.)  611, 

§315. 
Moore  v.  Cass,  10  Kans.  288,  §  97. 

V.  Hitchcock,  4  Wend.  292,  §  137. 
V.  McKinlay,  5  Cal.  471,  §  120. 
V.  Mohney,  1  Mich.  Nisi  Prius, 

143,  §  349. 
V.  Piercy,  1  Jones'  Law,  (N.  C. ) 

131,  §  109. 
V.  Shields,  69  N.  C.  50,  §  223. 
V.  Voughton,  1  Stark.  487,  §  128. 
Morey  v.  Brown,  42  N.  H.  373,  §  171. 
JMorgan  v.  Moore,  3  Gray,  319,  §  367. 
Morris  v.  Cleasby,  4  M.  &  Selw.  566, 
§276. 
V.  Edgington,  3  Taunt.  24,   §§ 
347,  371. 
Morrison  v.  New  York  &  N.  H.  E.  R. 
Company,  32  Barb.  568,  §§  85,  90, 238. 
Morrow  y.'Wood,  Sup.  Ct.  Iowa,  Nov. 

1874,  §  311. 
Morse  v.  Auburn  &  S.   R.   R.  Co.  10 
Barb.  621,  §  182. 
V.  Nixon,  6  Jones'  Law,  293,  §§ 

168,  183. 
V.  Slue,  1  Vent.  238,  §  292. 
V.  Welton,  G  Conn.  547,  §  314. 
Mortimer  v.  Brunner,  G  Bosw.  653,  §  347. 
Mortimore  c.  Wright,  G  INI.  &  W.  482, 

§310. 
Mosely  v.  State,  28  Ga.  190,  §  198. 
Moses  V.  Bierling,  31  N.  Y.  462,  §  271. 
V.  Mead,  1  Denio,  378,  §  161. 
V.  Stevens,  2  Pick.  332,  §  255. 
Mosher  v.  Jewett,  63  Me.  84,  §  243. 
Moulton  V.  Trask,  9  Mete.  577,  §  255. 
Mount  V.  Hunter,  58  III.  246,  §  156. 
Mullen  V.  Keetzleb,  7  Bush,  253,  §  272. 
Mullett  V.  Mason,  L.  R.  1  C.  P.  559,  §§ 

146,  155. 
]\Iumf ord  v.  Brown,  6  Cow.  476,  §  299. 
Munch  V.  N.  Y.  C.  R.  E.  Co.  29  Barb. 

647,  ^§  89,  238. 
jNIunsell  v.  Carew,  2  Cush.  50,  §  32. 
Markdree  v.  Sutton,  2  Jones'  Law,  146, 

§107. 
Murgatroyd  v.  Eobinson,  7  Ell.   &  Bl. 

391,  §  390. 
IMurphy  v.  EaUway  Company,  38  Iowa, 

539,  §  62. 
Murray  v.  S.  C.  R.  R.  Co.  10  Rich.  Law, 
227,  §§  80,  85. 
i:.  N.  Y.  C.  R.  R.  Co.  3  Abb.  Ct. 
App.  Dec.  339,  §  80. 
Musick  V.  A.  &  P.  R.  R.  Co.  57  Mo.  134, 
§88. 


TABLE    OF    CASES. 


473 


N. 


Nashville  &  Chattanooga  E,.  E.  Co.  v. 

Peacock,  25  Ala.  229,  §  2.35. 
Nashville   &  Decatur     E.    R.    Co.    v. 

Comans,  45  Ala.  437,  §  87. 
Natterstrom  v.  Ship  Hazard,  Bee.  Ad- 
miralty, 441,  §  255. 
Neale  v.  Mackenzie,  1  M.  &  "W.  747, 

§347. 
Nellis  V.  Lathrop,  22  Wend.  121,  §  304. 
Nesbitt  V.  Helser,  49  Mo.  383,  §  272. 
V.  Trumbo,  39  111.  110,"  §  405. 
Newburg  T.  Co.  v.  Miller,  5  Johns.  Ch. 

101,  §  145. 
Newkirk  v.  Milk,  62  HI.  172,  §  147. 
New  Albany  Etc.  E.  R.  Co.  v.  Aston, 

13  Ind.  545,  §  88. 
New  Albany  Etc.  E.  E.  Co.  v.  Bishop, 

13  Ind.  56(5,  §  88. 
New  Orleans,  Jackson  Etc.   E.  E.  Co. 

V.  Field,  46  Miss.  573,  §§  81,  87,  88. 
New  York  Central  R.  R.  Co.  v.  Lock- 

-vood,  17  Wall.  357,  §  293. 
New  York  &  Erie  R.  E.  Co.  v.  Skinner, 

19Penn.  St.  298,  §§  81,  239. 
Newman  v.  Eutter,  8  Watts,  51,  §  304. 
Newsom  v.  Thorton,  6  East,  17,  §  282. 
Nichol  V.  Godts,  10  Exch.  191,  §  127. 
Nichols  V.  Coolahan,  10  Met.  449,  §  260. 
NicoUs  V.  Bastard,  2  Crom.   M.  &  E. 

659,  §  159. 
Nightingale  ?'.  Withington,   15  INIass. 

274,  §§  104,  105. 
Norfleet  v.  Cromwell,  64  N.  C.  1,  §  299. 
North  V.  McDonald,  47  Barb.  528,  §  167. 
North  Pennsylvania  Etc.  E.  E.  Co.  v. 

Eehman,  49  Penn.  St.  109,  §§  81,  2.39. 
Northcot  V.  State,  43  Ala.  330,  §§  195, 

205. 
Northam  v.  Gordon,  46  Cal.  582,  §  108. 
Northern  Isidiaua  E.  E.  Co.  v.  Martin, 

10  Ind.  460,  §  237. 
Northwestern  U.   P.   Co.   v.   Atlee,   2 

Dill,  479,  §  386. 
Norton  v.  Ittner,  56  Mo.  351,  §  85. 
Norris  v.  Eailway  Company,  28  Vt.  99, 
§76. 
V.  Commonwealth,  27  Penn.  St. 
494,  §  288. 
Nothern  v.    The    State  Etc.  1  Carter, 

(Ind.)  113,  §15. 


O. 

Oakes  v.  Spaulding,  40  Vt.  347,  §  181. 
O'Conner  v.  Kelly,  41  Cal.  432,  §  346. 
O'DonneU    v.   Kelsey,  4    Sandf.    202, 

§  392. 
Odom,  Appling  adsit,  46  Ga.  583,  §  331. 
Ohio  &  Miss.  E.   R.  Co.   v.   Brown,  23 

111.  94,  §  85. 
Ohio  &  Miss.  R.  R.  Co.  v.  Jones,  63  111. 

472,  §  79. 
Ohio  &  Miss.  R.  R.  Co.  v.  Miller,   46 

Ind.  215,  §§  79,  80. 
Olmstead  v.  Beale,  19  Pick.  528,  §  2.54. 
Oneida  M.  S.  v.  Lawrence,  4  Cowen, 

440,  §  121. 


Ontario   Bank   v.  Mumford,  2  Barb. 

Ch.  596,  §  283. 
Orange  Co.  Bank  v.  Brown,  9  Wend. 

114,  §  289. 
O' Riley  V.  McChesney,   3   Lans.  278, 

§§  382,  383. 
Orne  v.  Roberts,  51  N.  H.  110,  §§  153, 

172. 
Orser  v.  Storms,  9  Cow.   687,   §§  159, 

2f48,  349. 
Onslow  V.  Fames,  2  Stark.  N.  P.  C.  81, 

§  i:;3. 
Osborn  v.  Hart,  24  Wis.  89,  §  405. 
Otis  V.  Sill,  8  Barb.  102,  §  32. 
Overman  v.  May,  35  Iowa,  89,  §§  397, 

399,  402. 
Oviatt  V.  State,  19  Ohio  St.  576,  §  207. 
Owens  V.  Railway  Company,  58  !Mo. 
386,  §  85. 
V.  Chaplain,  3  Jones'  Law,  323, 
§  328. 
Owen  V.  Foulkes,  6  Ves.  630,  Note  1,  § 
SIS 
V.  Peebles,  42  Ala.  3.38,  §  324. 
Owens  V.  Lewis,  46  Ind.  488,  §§  25,  366. 


P. 


Pacific,  Case  of  the,  Deady,  17,  §§  292, 

293. 
Packard  v.  Slack,  32  Vt.  9,  §  146. 
Packington  v.  Packington,  3  Atkyns, 

215,  §  301. 
Page  V.  Marsh,  .36  N.  H.  305,  §  327. 

V.  Pavey,  8  Car.  &  Payne,  7(!9,  § 
129. 
Pain  r.Wliittaker,  Ry.  &  M.  99,  §  159. 
Paine  v.  Woods,  108  Mass.  160,  §  380. 
Palmer  v.  Mulligan,  3  Caraes,  318,  § 

380. 
Paramore  v.   Indianapolis  Etc.  R.  R. 

Co.  31  Ind.  143,  §  70. 
Parker  v.  Great  Western   Rw.   Co.   6 
Ellis  &  Blackb.  77,  §  295. 
V.  Mise.  27  Ala.  480,  §  174. 
V.  Hotchkiss,  25    Conn.  321.  § 
386. 
Parkinson  v.  Lee,  2  East,  314,  §§  122, 

127. 
Parrott  v.  Barney,  2  Abb.  U.  S.  197,  § 

307. 
Parsons  v.  Hughes,  9  Paige  Ch.  591,  § 

110. 
Partenheimer  v.  Van  Order,  20  Barb. 

479,  §  154. 
Partlow  V.  Haggerty,  35  Ind.  178,  §  172. 
Pasley  v.  Freeman,  3  T.  R.  51,  57,  §§ 

111,  120. 
Passinger  v.  Thorburn,  34  N.  Y.  634, 

§  129. 
Patterson  v.  Tasli,  2  Strange,  1178,  § 

281. 
Paulin  V.  Howser,  63  111.  315,  §  315. 
Paulmier  v.  Railroad  Company,  34  N. 

J.  151,  (5  Vroom)  §  257. 
Peck  V.  Lockwood,  5  Day,  22,  §  49. 
Peek  V.  N.  S.  E.  R.  Co.  10  H.  L.  C.  473, 

§292. 
Peele  v.  Northcote,  7  Taimt.  478,  §  276. 


474 


TABLE    OF    CASES. 


Peninsular  &  Oriental   S.   N.    Co.   v. 

Shand,  3  Moore  P.  C.  (N.  S.)  272,  § 

292. 

Penhallow  v.  Dwiglit,  7  Mass.  34,  §  24. 

Penn  v.  B.  &  E.  E.  Pv.  Co.  49  N.  Y.  207, 

§  291. 
Pennsylvania  R.   E.   Co.    v.   Kerr,   62 

Penn.  St.  353,  §§  56,  74. 
Pennsylvania  II.  P.  Co.  v.  Riblet,  66 

Penn.  St.  164,  §  81. 
Pennybeclvsr  ?).  McDougal,  48  Cal.  160, 

§§  301,  308. 
Penton  v.  Pobart,  2  East,  88,  §  308. 
People  V.  Board  of  Police,  Etc.  24  How. 
Pr.  481,  §  183. 
V.  Brunell,  48  How.  Pr.  435,  § 

193 
V.  Nelson,  13  Johns.  340,  §  297. 
V.  Pillow,  1  Sandf.  711,  §  327. 
V.  Police  Board,   15    Abb.   Pr. 

167,  §  171. 
V.  Smith,  5  Cow.  258,  §  194. 
V.  Tibbetts,  19  N.  Y.  523,  §  49. 
Peoria  Bridge  Ass'n.  v.  Loomis,  20  111. 

235,  §  182. 
Peoria  v.  Johnston,  56  111.  45,  §  404. 
Percival  v.  Nevill,  1  Nott  &  McCord, 

452,  §  329. 
Perkins  v.  Eastern  Etc.  R.  R.  Co.  29 

Me.  307,  §§  78,  212,  214. 
Perley  v.  Chandler,  6  Mass.  454,  §§  375, 
397 
V.  Eastern  R.    R.  Co.  98  Mass. 
417,  §§  74,  75. 
Perminter  v.  Kelly,  18  Ala.  718,  §  334. 
Perrett  v.  Dupre,  3  Rob.  La.  52,  §  299. 
Person  v.  Chase,  37  Vt.  647,  §  314. 
Perrine  v.  Farr,  2  Zab.  356,  §  406. 
Perry  v.  Railway  Company,  36  Iowa, 
102,  §  89. 
V.  Phipps,  10  Ired.  Law,  262,  § 
174. 
Peru  V.  Turner,  10  Me.  185,  §  108. 
Peters  v.  Lord,  18  Conn.  337,  §  329. 
Petty  V.  Overall,  42  Ala.  145,  §  96. 

V.  Roberts,  7  Bush,  410,  §  312. 
Phelan  v.  Gardner,  43  Cal.  306,  §  271. 
Phelps  V.  Paris,  39  Vt.  511,  §  157. 

V.  Sheldon,  13  Pick.  50,  §  254. 
Philadelphia  &  E.  R.  R.  Co.  v.  Hum- 

mell,  44  Penn.  St.  378,  §  150. 
Philadelphia,  G.   &  N.   R.   R.   Co.  v. 

Wilt,  4  Whart.  143,  §  78. 
Philadelphia  &  Reading  R.  R.  Co.  v. 

Yerger,  73  Penn.  St.  121,  §  70. 
Philadelphia  &  Reading  R.  R.  Co.  v. 

Yeiser,  8  Penn.  St.  366,  §  70. 
Philips  V.  Condon,  14  111.  84,  §  101. 
Phillips  V.   Railroad    Company,    Sup. 
Ct.  Penn.  May,  1875,  §  367. 
V.   Oystee,  32   Iowa,  257,   §§ 

217,  225. 
V.  Rhodes,  7  Met.  322,  §  49. 
Phinizy  v.  Augusta,  47  Ga.  260,  §  383. 
Pickard  v.  Howe,  12  Met.  198,  §§  246, 

248. 
Pickering  v.  Busk,  15  East,  38,  §§  268, 
281. 
V.  Orange,  2  111.   (1    Scam.) 
492,  §  179. 


Picks  V.  Hankin,  4  Esp.  114,  §  269. 
Pierce  v.  Concord  R.  R.  51  N.  H.  591, 

§68. 
Piggott  V.  Eastern  Counties  Rw.  Co.  3 

C.  B.  229,  54  E.  C.  L.  228,  §§  63,  65,  70. 

73,  85. 
Pilkington  v.  Scott,  15  M.  &  W.  657,  § 

203. 
Pinney  v.  Andrus,  41  Vt.  631,  §  133. 
V.  Andrus,  41  Vt.  641,  §  121. 
V.  Wells,  10  Conn.  105,  §  137. 
Pitt  V.  Smith,  3  Camp.  33,  §  107. 
Pitts  V.  Hendricks,  6  Ga.  452,  §  16. 

V.  Lancaster  Mills,  13  Met.  156,  § 
388 
Pittsburg,  Fort  Wayne,  Etc.  R.  R.  Co. 

V.  Methvren,  21  Ohio  St.  586,  §  150. 
Plaisted  v.  Palmer,  Court  of  Appeals, 

(N.  Y.)  July,  1875,  §  110. 
Plaster  v.  Plaster,  47  111.  290,  §  310. 
Pluckwell  V.  Wilson,  5  Car.  &  P.  375,  § 

83. 
Plumer  v.  Prescott,  43  N.  H.  277,  §  25. 
Plumleigh  v.  Dawson,  6  111.  (1  Gilm.) 

544,  §  393. 
Plummer  v.  Webb,  4  Mason,  380,  §  313. 
Poler  V.  Railroad  Company,  16  N.  Y. 

476,  §  89. 
Pollard  V.  Hagan,  3  How.  212,  §  379. 
Pollitt  V.  Long,  58  Barb.  20,  §  382. 
Pomeroy  v.  Mills,  3  Vt.  279,  §  375. 
Pomfret  v.  Ricroft,  1  Saunders,  321,  § 

94. 
Pool  V.  Lewis,  41  Ga.  162,  §  393. 
Pope  V.  Garland,  3  Y.  &  C.  Exch.  394, 

§354. 
Poppen  V.  Holmes,  44  111.  360,  §  245. 
Popplewell  V.  Pierce,  10  Cush.  509,  § 

176. 
Porter  v.  Hannibal  &  St.  J.  R.  R.  Co. 

Sup.  Ct.  Mo.  ]May,  1875,  §§  250,  251. 
Potter  V.  Ames,  43  Cal.  75,  §  403. 

V.  Perry,  7  Weekly  Reporter,  182, 
§216. 
Powell  V.  Meyers,  26  Wend.  594,  §  292. 

V.  Sims,  5  W.  Va.  1,  §  211. 
Powers  V.  Osgood,  102  ISIass.  454,  §  394. 

V.  Ware,  2  Pick.  451,  §  330. 
Powley  V.  WaUier,  5  D.  &  E.  373,  §  42. 
Pratt  V.  Atlantic  &  St.  L.  R.  R.  Co.  42 
Me.  579,  §  67. 
V.  Philbrook,  33  Me.  23,  §  124. 
Presscott  v.  Holmes,  7  Rich.  Eq.  9,  § 
Prescott  V.  Mudgett,  13  Me.  423,  §  231. 
V.  Wright,  4  Gray,  461,  §  112. 
Pressey  v.Wiith,  3  Allen,  191,  §  153. 
Prettyman  v.  Walston,   34  111.   191,   § 

298. 
Prevot  V.  Lawrence,  51  N.  Y.  219,  §  303. 
Priestly  v.  Fowler,  3  M.  &  W.  6,  §§ 

249,  261. 
Prickett  v.  Prickett's  Admr.  20  N.  J. 

Eq.  478,  §  313. 
Saltus  V.  Prnyn,  18  How.  Pr.  518,  §  285. 
Pultney  v.  Keymer,  3  Esp.  182,  §  278. 
Purrington  v.  Loring,  7  Mass.  388,  §  247. 
Putnam  v.  Payne,  13  Johns.  312,  §§  169, 
183. 
V.  Wise,   1  Hill,  234,   §§    331, 
338. 


TABLE    OF    CASES. 


475 


Putnam  v.  Wyley,  8  Johns.  432,  §§  159, 

348,  349. 
Putney  v.  Day,  6  N.  H.  430,  §  37. 


Q. 

Queen  v.  Salntiff,  6  Mod.  255,  §  395. 
Quigley  v.  Railway  Company,  8  Allen, 
433,  §  75. 


E. 


Rachel  v.  Emerson,  6  B.  Mon.  280,  5 

328. 
Raiford  v.  Mississippi  Cent.  R.  E.  Co. 

43  Miss.  233,  §§  80,  81,  87,  238. 
Railway  Company  v.  Fuller,  17  Wall. 

560,  §  147. 
Railway  Company  v.  Gassawav,  Sup. 

Ct.  111.  Jan.  1875,  §  147. 
Railway  Company  v.  Keichbairns,  63 

111.  319,  §  76. 
Raitt  V.  Mitchell,  4  Canip.  146,  §  128. 
Ralston  v.  Ralston,  3  Greene,  (Iowa) 

533,  §  15. 
RandaU  v.  Raper,  El.  Bl.  &  El.  84,  96 
E.  C.  L.  84,  §  129. 
V.  Smith,  63  Me.  105,  §  277. 
Randleson  v.  Murray,  8  Ad.  &  E.  109,  § 

142. 
Rangeley  v.  Midland  R.  R.  Co.  L.  R.  3, 

Ch.  306,  §  395. 
Ransom  v.  New  York  &  E.  R.  R.  Co. 

15  N.  Y.  415,  §  182. 
Rasor  r.  Quails,  4  Blackf.  286,  §  36. 
Ray  V.  Haines,  52  111.  485,  §  312. 
Raymond  v.  Loyl,  10  Barb.  483,  §  310. 
Reab  v.  Moor,  19  Johns.  337,  §  254. 
Read  v.  Duusmore,  9  Car.  &  P.  588,  § 
249. 
(,'.  Edwards  17  C.B.  (N.  S.)  245,  § 
169. 
Reading  R.  R.  Co.  v.  Yeiser,  8  Penn. 

St.  366,  §§  61,  66. 
Redlield  v.  Tegg,  38  N.  Y.  212,  §  271. 
Reed  v.  Phila.  Etc.  R.  R.  Co.  3  Houst. 
176,  §  290. 
V.  Wood,  9  Vt.  285,  §  118. 
Reedy  v.  Smith,  42  Cal.  245,  §  148. 
Regina  v.  Berry,  8  Cox  Crim.  Cas.  117, 
§  169. 
V.  Smith,  8  Car.  &  P.  153,  §  260. 
V.  Stoke,  5  Q.  C.  303,  §  257. 
Reid  V.  Teakle,  13  C.  B.  627,  §  105. 
Rennie  v.  Robinson,  1  Bing.  147,  §  304. 
Respublica  v.  Fischer,  1  Dall.  335,  § 
Rew  V.  Barber,  3  Cow.  272,  §  124. 
Rex  V.  Briggs,  1  Moody,  318,  §  205. 
V.  Croke,  1  Cowper,  26,  §  247. 
t'.  Hoseason,  14  East,  605,  §  265. 
w.  Huggins,  2  Ld.  Raym.  1574,  §§ 

172,  175. 
V.  Islip,  1  Str.  423,  §  257. 
».  Kilderby,  1  Saund.  312,  §§  142, 

295. 
V.  Sudbrooke,  1  Smith,  59,  §  260. 
V.  Munden,  1  Str.  ISO,  §  317. 
V.  Polesworth,  2  Barn.  &  Aid.  483, 
§  257. 


Rex  V.  Sharrington,  4  Doug.  11,  §  257. 
V.  Whitney,  1  Moody,  3,  §  205. 
V.  Wigston,  3  Barn.  &  Cross.  484, 

§312. 
V.  Wintersett,  Cald.  300,  §  260. 
V.  Woodward,  2  East.  P.  C.  653, 
§  192. 
Rhodes  v.  Bullard,  7  East,  116,  §  347. 
Richardson  v.  Milburn,  11  Md.  340,   ^ 

209. 
Richmond  v.  Sacramento  Valley  R.  R. 

Co.  18  Cal.  357. 
Ricks  V.  Dillahunty,  8  Porter,  (Ala.) 

133,  §  124. 
Ricketts  v.  Eastern  Etc.  R.  R.  Co.  12  C. 

B.  168,  §§  78,  88. 
Eider  v.  Smith,  3  T.  R.  766,  §  216. 
Riley  v.  Home,  5  Bing.  217,  §§  288,  2!i2, 

295. 
Rindskoff  v.  Brett,  14  Iowa,  102,  §  47. 
Ritchie  v.  West,  23  111.  385,  §  135. 
Ritgerw.  Parker,  8  Cush.  145,  §  364. 
Rixford  v.  Smith,  52  N.  II.  355,  §  290. 
Robbins  v.  Bormau,  1  Pink.  122,  §  3()7. 
Roberts  v.  Barker,  1  Cr.  &  I\I.  809,  §  41. 

V.  Wyatt,  2  Taunt.  268,  §  99. 
Eoberson  v.  Kii-by,  7  Jones'  Law,  477, 

§57. 
Robertson  v.  Wellsville,  1  Bond,  81,  § 

404. 
Robinson  v.  Haas,  40  Cal.  474,  §  158. 
•    V.  Hall,  3  Mete.  301,  §  354. 
V.  Hindman,  3  Esp.  235,  §  256. 
V.  Varnnell,  1(5  Tex.  382,  §  352. 
V.  Western  Pac.  R.  R.  Co.  48 
Cal.  409,  §  77. 
Eockford  Etc.  R.  R.  Co.  v.  Lewis,  58 

111.  49,  §  78. 
Rockwell  V.  Nearing,  35  N.  Y.  302,  §§ 

242,  255. 
Rodgers  v.  Grothe,  58  Penn.  414,  §§  135, 

137,  141. 
Rodriguez  v.  Hefferuan,  5  Johns.  Ch. 

417,  §§  279,  281. 
Eodweil  V.  Phillips,  9  Mees.  &  W.  501, 

§37. 
Roe  V.  Hayley,  12  East,  469,  §  298. 
Eogers  v.  Eailway  Company,  1  Allen, 
16,  §§  82,  240. 
/:.  Clifton,  3  Bos.  &  Pul.  591. 
V.  Hanson,  35  Iowa,  28;'.,  §  117. 
t'.  Pitcher,  6  Taunt.  202,  §  304. 
V.  Smith,  17  Ind.  §  316. 
Eolke  V.  C.  &  N.W.  E.  Co.  26  Wis.  537. 

§§  63,  73. 
Eolt  V.  Lord  Somerville,  2  Eq.  Cas.  Ab. 

759,  §  301. 
Eood  V.  INIcCargar,  49  Cal.  117,  §  245. 
V.  New  York  &  E.  R.  R.  Co.  18 
Barb.  80,  §)>  61,  66,  70,  72. 
Rooth  V.  Wilson,  1  JBarn.  &  Aid.  59, 

§192. 
Roots  V.  Dormer,  4  Barn.  &  Ad.  77, 

§117. 
Eoseman  v.  Canovan,  43  Cal.  110,  §  160. 
Eotch  V.  Hawes,  12  Pick.  135,  §  100. 
Eourke  v.  Bullous,  8  Gray,  549,  § 
Eowe  V.  Stevens,  53  N.  Y.  021,  §  269. 
Eubidoex  v.  Parks,  48  Cal.  215,  §  285. 
Rucker  v.  Cammeyer,  1  Esp.  106,  §  269. 


476 


TABLE    OF    CASES. 


Eupp  V.  Samson,  86  Mass.  398,  §  272. 
Bushf orth  v.  Hadfield,  7  East,  229,  §  143. 
Kussell  Mfg.  Co.  v.  N.  H.  Steamboat 

Co.  60  N.  Y.  121,  §  187. 
Russell  V.  Fabyan,  34  K  H.  218,  §  3G1. 
V.  Hanley,  20  Iowa,  219,  §  237. 
V.  Tomlinson,  2  Conn.  200,  §  154. 
Paist  V.  Low,  G  Mass.  90,  §§  78,  88,  209, 

212,  214,  21G,  401. 
Rutherford  v.  Mclvor,  21  Ala.  750,  §  114. 
Ryan  v.  N.  Y.  Central  R.  R.  Co.  35  N. 
Y.  210,  §§  56,  74. 
V.  R.  &  S.  R.  R.  Co.  9  How.  Pr. 
453,  §§  212,  215. 
Ryder's  Case,  11  Paige,  187,  §  310. 


Sackrider  v.  McDonald,  10  Johns.  253, 

§245. 
Sadler  v.  Langham,  34  Ala.  311,  §  405. 
Safford  v.  Railroad  Company,  103  Mass. 

583. 
Sallade  v.  James,  6  Penn.  St.  144,  §  16. 
Salman  v.  Bradshaw,  Cro.  Jac.  304,  §  347. 
Sanborn  v.  Belden,  Sup.  Ct.  Cal.  Feb. 

1876,  §  403. 
Sanborn  v.  Colman,  6  N.  H.  14,  §  352. 
Sanf  ord  v.  Haskell,  50  Me.  86,  §  230. 
San  Francisco  v.  Canavan,  42  Cal.  541. 
San  Mateo  W.  Co.  v.  Sharpstein,  Sup. 

Ct.  Cal.  July,  1875,  §  403. 
Sainsbury  v.  Matthews,  4  M.  &  Wels. 

343,  §  35. 
Sargent  v.  Ballard,  9  Pick.  255,  §  378. 

V.  GUe,  8  N.  H.  325,  §  352. 
Satterthwaite  v.  Vreeland,  48  How.  Pr. 

508,  §  271. 
Saunders  v.  Topp,  4  Exch.  390,  §  113. 
Sawyer  v.  V.  &  M.  R.  R.  Co.  105  Mass. 
196,  §§  79,  85. 
V.  Cutting,  23  Vt.  486,  §  105. 
Scarfe  v.  Morgan,  4  M.  &  W.  270,  §§  137, 

138,  143. 
Schieffelin  v.  Carpenter,  15  Wend.  400, 

§301. 
Schneidar  v.  Heath,  3  Camp.  506,  §  126. 
School  Dist.  Etc.  v.  Boston  Etc.  R.  R. 

Co.  102  Mass.  552,  §  293. 
Schools  V.  Risley,  10  Wall.  91,  §  392. 
Schuyler  v.  Russ,  2  Caines,  202,  §§  121, 

133. 
Scott  V.  Irving,  1  Bam.  &  Ad.  605,  128. 
V.  W.  Railway  Co.  4  Jones'  Law, 
432,  §§  85,  241. 
Scranton  v.  Baxter,  4  Sandf.  8,  §  101. 
Screven  v.  Gregorie,  8  Rich.  Law,  158, 

§37L 
Scribner  v.  Blute,  28  Wis.  148,  §  402. 
Scruggs  V.  Gibson,  40  Ga.  511,  §  330. 
Scudder  v.  Paulding,  4  Rob.  (La.)  428, 

§  299. 
Seaborne  v.  ISIaddy,  9  C.  &  P.  497,  §  310. 
Searles  i'.  M.  &  St.  P.  R.  Co.  35  Iowa, 

490,  §  88. 
Seaton  v.  Benedict,  5  Bing.  30,  §  105. 
Seaver  v.  Morse,  20  Vt.  620,  §§  255,  260. 
Seegar  v.  Pettitt,  Sup.  Ct.  Penn.  Feb. 

1875,  §  308. 


Seeley  v.  Peters,  5  Gilm.  130,  §  212. 
Seger  v.  Barkhamsted,  22  Coim.  290, 

§  182. 
Sellen  v.  Norman,  4  Car.  &  P.  80,  §  260. 
Seymoiir  v.  Lewis,  13  N.  J.  450,  §  366. 
Sharrod  v.  London  &  N.  W.  R.  Co.  4 

Exch.  580,  §§  88,  241. 
Shaw  V.  Boston  &  W.  R.  R.  Co.  8  Gray, 
45,  §  149. 
V.  Kennedy,   2  Taylor,   (N.   C.) 

158,  §  245. 
V.  Reed,  9  W.  &  S.  72,  §  266. 
Sheldon  v.  Hudson  Etc.  R.  R.  Co.  29 
Barb.  226,  §  63. 
V.  Hudson  Etc.  R.  R.  Co.  14 

N.  Y.  224,  §  70. 
V.  Hudson  Etc.  R.  R.  Co.  14 
N.  Y.  218,  §§  66,  72. 
Shelton  v.  Springett,  20  Eng.  L.  &  E. 

281,  §  310. 
Shepard  v.  Buffalo,  K  Y.  &  E.  R.  R. 
Co.  35  N.  Y.  641,  §§  81, 
83,  234,  238. 
V.  Philbrick,  2Denio,  174,  §21. 
Shepherd  v.  Hees,  12  Johns.  433,  §  83. 
Sheridan  v.  Bean,  8  Mete.  284,  §  188. 
Sherman  v.  Rochester  &  S.  R.  R.  Co.  15 

Barb.  574,  §  261. 
Sherry  v.  Picken,  10  Ind.  375.  ,§  332. 
Sherwood  v.  Burr,  4  Day,  244,  §  377. 

V.  Seaman,  2Bosw.  127,  §  299. 
Shirts  V.  Overjohn,  Sup.  Ct.  Mo.  May 

Term,  1875,  §  112. 
Short  V.  Spackman,  2  Barn.  &  Adol. 

362,  §  269. 
Shrewsbury  v.   Smith,   12    Cush.    177, 

§149. 
Shropshire  v.  Burns,  46  Ala.  168,  §  312. 
Shumway  v.  CoUins,  6  Gray,  227,  §  347. 
Sibley  u.  Holden,  10  Pick.  249,  §  395. 
Sika  V.  C.  &  N.W.  R.  Co.  24  Wis.  370,  § 

239. 
Simmons  v.  Robertson,  27  Ark.  50,  §  303. 
Simpson  v.   Biack,  5  Lans.  JST.  Y.  337, 
§313. 
V.  Robertson,  1  Esp.  17,  §  310. 
Sims  V.  Bice,  67  111.  88,  §  112. 

V.  Chance,  7  Tex.  561,  §  352. 
Single  V.  Wilkinson,  57  N.  Y.  445,  §  318. 
Sill  V.  Reese,  47  Cal.  341,  §  71. 
Six  Carpenters'  Case,  8  Coke,  146,  §§ 

245,  400. 
Skaggs  V.  Emerson,  Sup.  Ct.  Cal.  July, 

1875,  §  ;M7. 
Skinner  v.  Upshaw,  2  Ld.  Raym.  752, 

§294. 
Slater  v.  Rink,  18  111.  527,  §  182. 
Slaughter  House  Cases,  16  Wall.  62, 

§147. 
Smart  v.  Allison,  Olijihant  on  Horses, 

450,  §  133. 
Smeed  v.  Foord,  102  E.  C.  L.  (1  Q.  B.) 

612,  §  129. 
Smiles  v.  Hastings,  24  Barb.  44,  §  368. 
Smith  V.  Atkins,  18  Vt.  461,  §  360. 

V.  Babcock,  2  Woodb.  &  Minot, 

246. 
V.  Borst,  63  Barb.  57,  §  120. 
V.  Causey,  22  Ala.  571,  §  175. 
V.  Carroll,  4  Greene,  (Iowa)  146. 


TABLE -OF    CASES. 


477 


Smith  V.  Chicago  Etc.  E.  R.  Co.  34  Iowa, 
90,  §§  85,  234. 
V.  Cooke  Hight,  Ct.  of  Jus.  West- 
minster, Q.  B.  Div.  Dec.  24, 
1875,  §  186. 
V.  Eastern  Eailroad,  35  2Sr.   H. 

350,  §  78. 
V.  Gates,  21  Pick.  55,  §  247. 
V.  Green,  33  L.   J.   (IST.   S.)  572, 

§146. 
V.  Great  Eastern  Rw.  Co.  L.  K. 

2  C.  P.  4,  §  178. 
I'.  H.  &  St.  J.  R.  R.  Co.  37  Mo. 

294,  §  70. 
V.  Home,  8  Taunt.  146,  §  292. 
V.  Johnston,  1  Penn.  471,  §§  15, 

16. 
V.  Justice,  13  Wis.  600,  §  133. 
V.  L.  &  S.  W.  Ew.  Co.  Law  Rep. 

0  C.  P.  14,  §  56. 
V.  Montgomery,  52  Me.  178,  §  153. 
V.  Nelson,  33  Iowa,  24,  §  335. 
V.  N.  H.  &  N.  R.  R.  Co.  12  Allen, 

531,  §  291. 
V.  O'Hara,  43  Cal.  371,  §  386. 
V.  Pelah,  2  Strange,  1264,  §§  65, 

175. 
V.  Smith,  1  Sweeny,  (IsT.  Y.)  552, 

§271. 
V.  Surman,  9  Barn.  &  Cress.  561, 
§35. 
Smithwick  v.  Ellison,  2  Ired.  Law,  326, 

§48. 
Smyth  V.  Tankersley,  20  Ala.  212,  §§ 

334,  339. 

Snap  V.  The  People  Etc.  19  111.  80,  §  199. 

Sneesby  v.  L.  &  Y.  R.  R.  Co.  Ct.  of 

App.   from  Q.  B.  Nov.    18th,   1875, 

§233. 

Soames  v.  Spencer,  1  Dow.  &  Ry.  32, 

§269. 
Sodergren  v.  Flight,  6  East,  622n,  §  294. 
Somers  v.  Joyce,  40  Conn.  592,  §  340. 
Southard  v.  Haywood,  Sup.  Ct.  Penn. 

Nov.  1874,  §  133. 
Southcote's  Case,  4  Co.  Rep.  84,  §  292. 
Southern  Express  Co.  v.  Crook,  44  Ala. 

468,  §§  292,  293. 
Spafford  v.  Stutsman,  9  Iowa,  128,  § 

117. 
Spain  V.  Arnott,  2  Stark.  256,  §§  249, 254. 
Spalding  v.  Oakes,  42  Vt.  343. 
Spaulding   v.  Chicago    Etc.   Railway 
Company,  30  Wis.  110, 
§§  66,  71,  73. 
V.   Chicago  Etc.  Rw.  Co.  33 
Wis.  582,  §  70. 
Spratt  V.  Jeffery,   10  Barn.   &  Cress. 

249,  §  124. 
Spreadbury  v.  Chapman,  8  Car.  &  P. 

371,  §  105. 
Squire  v.  Whipple,  1  Vt.  69,  §  329. 
Stackpole  v.  Healy,  16  Mass.  33,  §  241. 
Stafford  v.  Ingersol,  3  Hill,  38,  §§  212, 

215 
Stanton  v.  AVillson,  3  Day,  37,  §  310. 
Staple  V.  Heydon,  6  Mod.  3,  §  368. 
Stark  V.  Parker,  2  Pick.  267,  §  254. 
St.  Albans  S.  B.  Co.  v.Wilkins,  8  Vt.  54, 
§254. 


State  V.  Baird,  3  C.  E.  Green,  196,  §  31.3. 
V.  Jackson,  12  Ired.  Law,  329   5 

205. 
V.  Jewell,  34  N.  J.  L.  (5  Vroom) 

260,  §§  331,  332. 
V.  Jones,  2  Dev.  &  Bat.  Law,  544, 

§334. 
V.  Latham,  13  Ired.  Law,  33,  §  305. 
V.  McCormick,  1  Term.  305,  §  194. 
V.  McKenzie,  65  K  C.  102,  §"323. 
V.  Melogue,  9  Ind.  196,  §  28. 
V.  Moses,  2  Dev.  Law,  452,  §  174. 
V.  Newby,  04  K.  C.  23,  §§  19y,  205. 
V.  PiercCj  7  Ala.  728,  §  205. 
V.  Pierce,  7  Ala.  730,  §§  195,  197. 
V.  Reddick,  7  Kans.  143,  §  106. 
V.  Scott,  2  Dev.  &  B.  Law,  35,  § 

174. 
V.  W.  &  St.  P.  R.  R.  Co.  19  ISIinn. 

434,  §  82. 
V.  Welpton,  34  Iowa,  144,  §  402. 
V.  Wheeler,  3  Vt.  347,  §  195. 
V.  Wilcox,  3  Yerg.  278,  §  203. 
Stanton  v.  Bell,  2  Hawks,  145,  §  135. 
Stevens  v.  Armstrong,  6  N.  Y.  435,  § 
206. 
V.  Dennett,  51 N.  H.  324,  §  365. 
V.  P.  &  K  R.  R.  Co.  34  N.  J.  L. 

(5  Vroom)  532,  §  379. 
V.  Thompson,  17  K  H.  109,  § 

303. 
V.  Wliistler,  11  East,  51,  §  395. 
V.  AVilson,  3  Denio,  473,  §  281. 
Stevenson  v.  Blakelock,   1  Maule  & 

Selw.  543,  §  294. 
Stewart  v.  B.  &  M.  R.  R.  Co.  32  Iowa, 
561,  §§  80,  85. 
V.  Aberderu,  4  Mees.  &  W.  211, 

§  128. 
V.  Doughty,  9  Johns.  108,  §  24. 
V.  Hartman,  40  Ind.  332,  §§  372, 
406. 
St.  John  V.  Quitzer,  Sup.  Ct.  111.  June, 

1874,  §  303. 
St.  Louis  Etc.  R.  R.  Co.  v.  Kaulbru- 

mer,  59  111.  153. 
St.  Louis  Etc.  E.  E.  Co.  v.  Linder,  39 

ni.  433,  §  230. 
Stackpole  v.  Healy,  16  Mass.  33,  §  397. 
Stockley  v.  Stockley,  1  Ves.  &  Bea.  30, 

§107. 
Stoddart  W.  M.  Co.  v.  Huntley,  8  N.  H. 

441,  §  137. 
Stoner  v.  Shugart,  45  lU.  76,  §  212. 
Strathmore  v.  Bowes,  2  Bro.  Ch.  88,  § 

301. 
Strohl  V.  Levan,  39  Penn.  St.  177,  §  315. 
Strong  V.  Doyle,  110  ISIass.  92,  §§  44,  47. 
Stuart  V.  Hawley,  22  Barb.  619,  §  M. 
V.  Wilkius,  1  Doug.  18,  §  133. 
Stucker  v.  Yoder,  33  Iowa,  177,  §  312. 
Studwell  V.  Ritch,  14  Conn.  295,  §§  211, 

214. 
Stumps  V.  Kelley,  22  111.  140,  §  176. 
Sturtevant  v.  Merrill,  33  INIe.  62,  §§  209, 

212  214. 
Sudden  v.  Leavitt,  9  Mass.  104,  §  159. 
Sullivan  v.  Park,  33  Me.  438,  §  294. 

r.  Scripture,   3  Allen,   504,   § 
149. 


478 


TABLE    OF    CASES. 


Summers  w.Vaughan,  35  Ind.  323,  §  118. 
Susandorff  v.   Schmidt,   N.   Y.   Ct.  of 

App.  A.  L.  J.  Aug.  1874,  §  272. 
Sutton  V.  Buck,  2  Taunt.  .309,  §  191. 

V.  Tat.ham,  10  Ad.  &E1.  27,  § 
128. 
Sweet  V.  Bradley,  24  Barb.  549,  §  21. 

V.  Pym,  1  East,  4,  §  294. 
Swift  V.  Moseley,  10  Vt.  208,  §  98. 

V.  Williams,  2  Ind.  365,  §  254. 
Sykes  v.  Dixon,  9  Ad.  &  El.  693,  §  263. 
V.  Lawler,   Sup.   Ct.    Cal.   Nov. 
1870,  §  316. 
Sympson  v.  Davis,  Veterinarian,  Vol. 

22  528   §  1.33 
Synionds  v.  Hall,  37  Me.  354,  §  339. 


Taft  V.  Montague,  14  Mass.  282,  §  254. 
Tague  V.  Hay  ward,  25  Ind.  427,  §  329. 
Tally  V.  Ayres,  3  Sneed,  (Tenn.)  677,  § 

61. 
Talmadge  v.  Rensalear  Etc.  R.  E.  Co. 

13  Barb.  493,  §§  81,  83. 
Tarleton  v.  McGawley,  Peak's  N.  P. 

C.  207,  §  263. 
Tate  V.  Biackburne,  48  Miss.  1,  §  308. 
Taylor  v.  Baldwin,  10  Barb.  582,  §  363. 
V.  Bradlev,  39N.  Y.  129,  §340. 
V.  Fleets,''4  Barb.  95,  §  114. 
V.  Foster's  Admi-.  22  Ohio  St. 

255,  §  29. 
V.  Porter,  4  Hill,  146,  §§  245,  405. 
V.  Whitehead,  2  Doug.  745,  §§ 

94,  376. 
V.  Zamira,  6  Taunt.  524,  §  298. 
Teall  V.  Barton,  40  Barb.  137,  §  53. 
Temple  v.  Scott,  3  Minn.  419,  §  27. 
Templeman  v.  Biddle,  1  Harring.  (Del.) 

522,  §  36. 
Tenney  v.  Lenz,  16  Wis.  566,  §  169. 
Terhune  v.  Elberson,  2  Penn.  N.  J.  726, 

§16. 
Terre  Haute  &  R.  R.  R.  Co.  v.  Graham, 

46  Ind.  239,  §  265. 
Terre  Haute  &  I.  R.  R.  Co.  v.  Smith,  16 

Ind.  102,  §  81. 
Terry  v.  N.  Y.  Central  Railroad  Com- 
pany, 22  Barb.  574,  §§  81,  83. 
Tewkesberry  v.  Bennett,  31  Iowa,  83,  § 

123. 
Thayer  v.  Arnold,  4  Met.  589,  §§  88, 167, 
209,  212,  214,  216. 
V.  St.  L.  Etc.  R.  R.  Co.  22  Ind. 

26,  §  251. 
V.  Wadsworth,  19  Pick.  349,  § 
254. 
Thomas  v.  Boston  &  P.  R.  R.  Co.  10 
Met.  372,  §  292. 
V.  Brackney,  17  Barb.  056,   § 

386. 
V.  Dike,  11  Vt.  273,  §  255. 
Thompson  v.   Bostick,  McMuUen  Ch. 
75,  §  363. 
V.  Hamilton,  12  Pick.  428,  § 

104. 
V.  Patteson,     Oliijliant    on 
Horses,  102,  §  133. 


Thompson  v.  Perkins,  3  Mason,  232,  § 

276. 
Thorp  V.  Freed,  1  Mont.  051,  §  386. 
Thm-ber  v.  INIartin,  2  Gray,  394,  §  394. 
V.  Townsend,  22  N.  Y.  517,  § 
355. 
Tift  V.  Tift,  4  Denio,  175,  §  315. 
Tilghman  v.  Little,  13  111.  239,  §  303. 
Tobin  V.  Crawford,  9  M.  &  W.  718,  § 

264. 
Toledo  Etc.  R.  R.  Co.  v.  Bray,  57  HI. 

514,  §§  78,  85. 
Toledo  Etc.  R.  R.   Co.  v.   Howell,  38 

Ind.  447,  §  81. 
Toledo  Etc.  R.  R.  Co.  v.  Ingraham,  58 

m.  120,  §  78. 
Toledo  Etc.  R.  R.  Co.  v.  Pindar,  53  HI. 

447,  §§  02,  72. 
Tonawanda  Etc.  R.  R.  Co.  v.  Munger, 

5  Denio,  255,  §§  83,  209,  214. 
Tombs  V.  Alexander,  101  Mass.  255,  § 
272. 
V.  R.  &  S.  R.  R.  Co.  18  Barb. 
583,  §  83. 
Torrens  v.  Campbell,  74  Penn.  St.  470, 

§  314. 
Torrey  v.  Bank  of  Orleans,  9  Paige,  648, 
§  285. 
V.  Black,  65  Barb.  417,  §  323. 
Tourtelot  v.  Rosebrook,  11  Met.  460,  § 

55 
Tower  v.  P.  &  W.  R.  R.  Co.  2  R.  I. 

404,  §  81. 
Towns  V.  Cheshire  Etc.  R.  R.  Co.  21 

N.  H.  78,  88,  363,  §§  241. 
Townsend  v.  Davis,  Forrest,  120,  §  303. 
V.  Wathen,9East,277,  §  170. 
Tracy  v.  Troy  &  B.  R.  R.  Co.  38  N.  Y. 

433,  §§  2.34,  238. 
Train  v.  Gold,  5  Pick.  380,  §  108. 
Trent  and  Mersey  jSTavigation  Co.  v. 

Wood,  4  Doug.  290,  §  289. 
Trice  v.  H.  Etc.  R.  R.  Co.  49  Mo.  438,  § 

238. 
Triscony  v.   Orr,  Sup.    Ct.  Cal.   May, 

1875,  §  159. 
Trotter  v.  McCall,  26  Miss.  413,  §  352. 
Trustees  Etc.  v.  Walsh,  57  111.   363,  § 

404. 
Tubervil  v.  Stamp,  1  Salk.  1-3,  §  55. 
Tuberville  v.  Stampe,  1  Ld.  Raym.  264, 

§75. 
Tucker  v.  Woods,  12  Johns.  189,  §  108. 
Tuff  V.  Warman,  5  C.  B.  (N.  S. )  573,  § 

77. 
Tunis  V.  Grandy,  22  Gratt.  109,  §  296. 
TurnbuU  v.  Rivers,  3  McCord,  131,  § 

371. 
Turner  v.  Mason,  14  M.  &  W.  112,  §§ 
252,  253. 
V.  Robinsons,  6  Car.  &  P.  15,  § 
256. 
Turnpike  Company  v.  P.  &  T.  R.  R. 

Company,  54  Penn.  St.  349,  §  70. 
Tuttle  V.  Bebee,  8  Johns.  152,  §  339. 
V.  Brown,  4  Gray,  457,  §  118. 
Tyack  v.  Brumley,  1  Barb.  Ch.  519,  § 

542. 
Tye  V.  Fynmore,  3  Campb.  462,  §  127. 
Tyler  v.  Parr,  52  Mo.  249,  §  272. 


TABLE    OF    CASES. 


479 


Tyler  v.  Sturdy,  108  Mass.  196,  §  4(M. 

V.  Wilkinson,    4    Mason,   397,  5 
378. 


U. 


Union  Pacific  R.  R  Co.  v.  Rollins,  5 

Kans.  167,  §§  80,  115,  217. 
United   States   n.    Anderson,    Cooke, 
Tenn.  143,  §  330. 
V.    Pacheco,    2    Wall. 
587,  §  379. 
Urmstonv.  Newcomen,  4  Ad.  &E1.  899, 

§310. 
Uridias  v.  Morrell,  25  Cal.  35,  §  361. 


V. 


Valley  Falls  Company  t-.  Dolan,  9  R.  I. 

489,  §  371. 
Van  Buskirk  v.  Purriuton,  2  Hall,  561, 

§294. 
Vandenburgh  v.  Truax,  4  Denio,  464,  § 

56. 
Vande walker  v.  Osmer,  65  Barb.  556, 

§120. 
Van  Dorn  v.  Young,   13  Barb.  286,  § 

330. 
Van  Hooser  v.  Corey,  34  Barb.  10,  §  31. 
Van  Leeven  v.   Lyke,   1  N.  Y.  515,   § 

176. 
Van  Ness  v.  Packard,  2  Pet.  137,  §§  47, 

309. 
Van  Rensselaer  v.  Jewett,  2  N.  Y.  147, 

§346. 
Van  Steenbergh  v.  Tobias,  17  Wend. 

562,  §  154. 
Varney  v.  Y^oung,  11  Vt.  258,  §  314. 
Vaughan  v.  ISIanlove,  3  Bing.  (N.  C.) 

468,  §§  50,  56,  101. 
Vaughan  v.  Taft  Vale  Railway  Com- 
pany, 5  Hurlst.  &  N.  679,  §§  61,  65. 
Vent  V.  Osgood,  19  Pick.  572,  §  255. 
Vicksbui-g  &   Jackson   R.   R.   Co.  v. 

Patton,  31  Miss.  156,  §§  81,  238. 
Vincent  v.  Leland,  100  Mass.  432,  §  113. 
Voorhees  v.  McGinnis,  48  N.  Y.  278,  § 

228. 
Vrooman  v.  Lawyer,  13  Johns.  339,  §§ 

172,  176. 


W. 

Waddington  v.  Bristow,  2  Bos.  &  Pul. 

452,  §  35. 
Wadlep  V.  Davis,  63  Barb.  500,  §  118. 
Waland  v.  Elkins,  1  Stark.  272,  §  265. 
Waldron  v.  Rensselear  Etc.  B.  R.  Co.  8 

Barb.  390,  §§  78,  83. 
Walker  v.  Boiling,  22  Ala.  294,  §  261. 
V.  Fitts,  24  Pick.   191,  §§  331, 

338. 
V.  General  Sessions  Sup.  Ct.  K 

Y.  April,  1875,  §  170. 
V.  Herron,  22  Tex.  55,  §  145. 
V.  Sherman,  20  Wend.  639,  §§ 

44,  228,  308. 
V.  Watrous,  8  Ala.  493,  §  229. 


Wallace  v.  Simpson,  N.  Y.  Marine  Ct. 

July,  1875,  §  271. 
r.  Woodgate,  1  Car.  &  P.  575, 

§  189. 
Walls  V.  Preston,  25  Cal.  62,  §§  3.'58,  339. 
Walsh  V.  V.  &  T.  R.  R.  Co.  8  Nev. 

110,  §  85. 
Walther«;.Wetmore,  1  E.  D.  Smith,  25, 

§  281. 
Walton  V.  New  Orleans  Etc.  R.  R.  Co. 
23  La.  Ann.  398,  §  272. 
V.  Waterhouse,  2  Saund.  422, 
§94. 
Ward  V.  Bledsoe,  32  Tex.  251,  §  284. 
V.  Armes,  9  Johns.  138,  §  259. 
Wander  v.  Keokuk  Etc.  R.  R.  Co.  Sup. 

Ct.  Iowa,  Jan.  1876,  §  234. 
Warden  v.   Plummer,  4  Jones'  Law, 

524,  §  78. 
Warner  t;.  Hoisington,  42  Vt.  94,  §§  331, 
338,  339. 
V.  Martin,  11  How.  209,  §  280. 
Warren  v.  Chambers,  25  Ark.  12,  §  380. 

V.  Leland,  2  Barb.  613,  §  .37. 
Warwick  v.  Bruce,  2  jMaule  &  S.  205, 

§35. 
Washburn  v.   Cuddihy,   8  Gray,  430, 

§133. 
Waters  v.  Monarch,  L.  &  F.  Ins.  Co.  34 
Eng.  L.  &  Eq.  116,  §  274. 
V.  Moss,  12  Cal.  5.35,  §§  61,  111, 
211,  244,  214,  236. 
Water  Works   Co.  v.    Burkhardt,  41 

Ind.  364,  §  405. 
Watkins  v.  Roberts,  28  Ind.  167,  §  101. 
Watson  V.  Denton,  7  C.  &  P.  86,  §  133. 
Wattson  V.  The  Railroad,  7  PhUa.  249, 

§87. 
Way  *J.  Railway  Company,  Sup.   Ct. 

111.  May,  1875,  §  251. 

Weall  V.  King,  12  East,  452,  §  128. 
Weatherston  v.  Hawkins,  1  T.  R.  110, 

§262. 
Webb  V.  Plummer,  2  B.  &  Ad.  746,  §  41. 
V.  R.  AV.  &  O.  R.  R.  Co.  49  N.  Y. 
425,  §§  52,  56. 
Webber  v.  Closson,  35  Me.  26,  §§  209, 
212,  214,  24.3. 
r.  Eastern  R.  R.  Co.  2  Met. 
151,  §  398. 
Webster  V.  Holland,  58  Me.  168,  §  393. 

V.  Orne,  45  Vt.  40,  §  27. 
Weed  V.  Adams,  37  Conn.  378,  §  284. 
Weimer  v.  Clement,  37  Penn.  St.  147, 

§115. 
Weisgar   v.   Graham,   3    Bibb,   313,   § 

264. 
WeUs  V.  Beal,  9  Kans.  597,  §  232. 

V.  Howell,  19  Johns.  385,  §§  167, 
209,  212,  215,  241. 
Wennal  v.  Adney,  3  Bos.  &  Pul.  247, 

§200. 
West  V.  Bolton,  4  Vt.  558,  §  158. 

V.  Forrest,  22  Mo.  344,  §  182. 
Westbrook  v.  Eager,  1  Harr.  (N.  J.)  81, 

§15. 
Westbrook  v.  North,  2  Me.  179,  §  367. 
Weston  V.  Missouri,  U.  S.  Sup.  Ct.  Feb. 

1876,  §  288. 
Whelan  v.  Lynch,  65  Barb.  327,  §  284. 


480 


TABLE    OF    CASES. 


Wheeler  v  Brant,  23  Barb.  324,  §§  173, 

176. 
"Wlieelock  v.  Wheelwright,  5  Mass.  lOi, 

§§  98,  102. 
Whipley  v.  Dewey,  8  Cal.  36. 
Whipple  V.  Dow,  2  Mass.  415,  §  310. 

V.  Foote,  2  Johns.  418,  §  23. 
Whirlevi'.Whiteman,  IHead,  610,  §64. 
Whitbeck  v.  D.  &  P.  R.  E.  Co.  21  Iowa, 

103,  374,  §  85. 
White  V.  Vann,  6  Humph.  70,  §  294. 
White  V.  Merritt,  7  N.  Y.  352,  §  111. 
White's  Bank  v.  Kichols,  ZST.  Y.  Ct.  of 

App.  Feb.  1876,  §  395. 
Whiting  V.  Brastow,  4  Pick.  310,  §  309. 

V.  Earl,  3  Pick.  201,  §  314. 

Whitmarsh  v.  Hall,  3  Denio,  375,  §  255. 

V.  Walker,  1  Met.  313,  §  36. 

Whitney  v.  Dutch,  14  Mass.  457,  §  104. 

V.  Heywood,  6  Cush.  82,  §  124. 

Whittaker  v.  Burhans,   62  Barb.   237, 

§  380. 
Whitson  V.  Culbertson,  7  Ind.  195,  § 

1G5. 
Wiggins  V.   McCleary,  49  N.   Y.   346, 

§404. 
Wigmore  v.  Jay,  5  Exch.  354,  §  261. 
Wilber  v.  Hubbard,  35  Barb.  303,  §  154. 
Wilbur  V.   Cartwright,   44  Barb.   536, 

§121. 
Wild  V.  Deig,  43  Ind.  455,  §  405. 
Wmder  V.  A^'eakly,  34  Md.  181,  §  106. 
Wiley  V.  Slater,  22  Barb.  508,  §  173. 
Wilkins  v.  Vashbinder,  7  Watts,  378,  § 

16. 
WiUvinson  v.  King,  2  Camp.  335,  §§100, 
352. 
V.  Parrott,  32  Cal.  102,  §  178. 
WiUiams  v.  Dixon,  65  N.  C.  416,  §  183. 
V.  Groucott,  4  B.  &  S.  149, 

§82. 
V.  Holland,  6  Car.   &  P.  23, 

§83. 
V.  Ingram,  21  Tex.  300,  §  121. 
V.  James,  16  L.  T.  (KS.)664, 

§375. 
V.  Mich.  Cent.   E.  E.   Co.  2 

Mich.  259,  §  81. 
V.  Millington,   1  H.    Bl.    81, 

§192. 
V.  Moor,  11 M.  &  W.  256,  §  104. 
V.  Zs^ew  York,  Etc.  E.  E.  Co. 

39  Conn.  509,  §  404. 
V.  Nolen,  34  Ala.  107,  §§  334, 

339. 

V.  SafEord,  7  Barb.  309,  §  376. 

V.  Triplett,  3  Iowa,  518,  §  117. 

Williamson  v.  Berry,  8  How.  495,  §  321. 

Willings  V.  Consequa,  Pet.  C.  C.  301,  § 

Willis  V.  Legris,  45  111.  289,  §  245. 


Willoughby  v.  Carleton,  9  Johns.  136,  § 

229. 
Wills  V.  Walters,  5  Bush,  351,  §  217. 
Wilson  t'.  Grand  Trunk    Ew.   Co.    56 
Me.  CO,  §  294. 
V.  Little,  2  N".  Y.  443,  §  32. 
V.  Beverly,  2  N".  H.  548,  §  266. 
V.  Eaybould,  56  111.  417,  §  296. 
V.  Zuluelta,  14  Q.  B.  405,  §  275. 
Wiltshear  i\  Cottrel,  1  El.  &  Bl.  674, 

§308. 
Wimbledon  w.  Dixon,  33  L.  T.  (N.  S.) 

679,  §  375. 
Wingard  v.  Banning,  39  Cal.  54.3,  §  294. 
Winn  V.  Southgate,  17  Vt.  355,  §  254. 
Winship  v.  Pitts,  3  Paige,  259,  §  301. 
Winsor  v.  Dillaway,  4  Met.  221,  §  128. 
V.  Lombard,  18  Pick.  57,  §  121. 
Winter  v.  Coit,  7  N.'  Y.  288,  §§  274,  284. 
Winter  v.  Winter,  8  Nev.  129,  §  394. 
Wintz  V.  Morrison,  17  Tex.  372,  §  146. 
Witty  V.  IMatthews,  52  X.  Y.  312,  §  299. 
Wolfe  V.  Frost,  4  Sandf.  Ch.  71,  §  366. 
Wood  V.  Fenwick,  10  Mees.  &  W.  195, 
§312, 
V.  ISIcClure,  7  Ind.  155,  §  101. 
V.  Wand,  3  Exch.  748,  §  390. 
V.  Wood,  1  Car.  &  P.  59,  §  128. 
Woodbury  v.  Bobbins,  10  Cush.  520, 

§  133. 
Woodruff's  Case,  4  Md.  242,  §  68. 
Woods  V.  Stephens,  46  Mo.  555,  §  271. 
Woodward  v.  Purdy,  20  Ala.  379,  §  167. 

V.  Libby,  58  Me.  42,  §  127. 
Woolf  V.  Chalker,  31  Conn.  121,  §§  153, 

169,  176,  183. 
Wort  V.  Jenkins,  14  Johns.  352,  §  174. 
Wright  V.  Howard,  1  Sim.  &  S.   190, 
§§  383,  396. 
V.  Solomon,  19  Cal.  64,  §  282. 
V.  State,  30  Ga.  325,  §  198. 
V.  Wright,  21  Conn.  329,  §  214. 
Wyman  v.  P.  &  K.  E.  E.  Co.  46  Me. 
162,  §  240. 


Y. 


Yale  V.  Seely,  15  Vt.  221,  §  339. 
Yates  V.  Eailston,  8  Taunt.  293,  §  294. 
Yates  V.  Van  de  Bogart,  IST.  Y.  Ct.  of 

App.  February  6th,  1876,  §§  228,  379. 
Yeazel  v.  Alexander,  58  HI.  254,  §  147. 
Youl  V.  Harbottle,  Peake,  68,  §  352. 
Yost  V.  Leonard,  34  Iowa,  9,  §  404. 
Youngblood  v.   Lowrie,  2  McCord,  39, 

§302. 


Zouch  I'.  Parsons,  3  Burr,  1794,  §  312. 


INDEX 


Farm— 81. 


INDEX. 


Abrasions — when  unsoundness,  §  133. 

Abuse — of  confidence,  effect  of  on  contract,  §  12H. 

of  confidence.     See  Contkact, 
Acceptance — constructive,  §  113. 

of  property  on  contract,  §  113. 

what  constitutes,  §  113. 
Accident —  defense  of  in  actions  for  damages,  §§  50,  .51. 

when  unavoidable,  §§  50,  51. 

See  DamaCxES,  and  Measure  of  Damages. 
Accretion — doctrine  of  applied  to  sea-weed,  §  49. 

land  created  by  alluvium,  §  391. 

owner  of  adjoining  land,  when  entitled  to,  §  391. 
Advances — on  growing  crops,  §  15. 

See  Factors. 
Agent — acts  of,  when  principal  bound  by,  §  118. 

commissions  of,  §  286. 

cotnmissious  of,  when  forfeited,  §  286,  and  note  1. 

commission  merchants,  factors,  and  consignees,  §  273. 

cannot  purchase  property  of  principal,  §  :!18. 

general  and  special,  §  118. 

real  estate  agents  and  brokers,  §  271. 

Bervant  of  employer,  when  so  regarded,  §  264. 

warranty,  when  authorized  to  make  contract  of,  §  118. 

wife,  her  husband's  agent,  §  105,  and  note  2. 
See  Brokers,  Factors,  Wife. 
Agistors — animals,  agistor's  rights  of  possession,  §  191. 

animals,  agistor  may  prosecute  thief  of,  §  192. 

bailment,  rules  of  applicable  to  agistors,  §§  184,  185,  186. 

care  of  animals  to  amount  to  '•  ordinary  care,"  §§  184,  185. 

care  of  animals  to  correspond  to  their  value,  §  184. 

care  to  be  exercised,  to  guard  against  infectious  disease,  §  157. 

covenants  of,  express  and  implied,  §§  184,  186. 

damages,  liability  for  trespass  by  animals,  §  188. 

damage,  when  agistor  may  recover  for  injury  to,  §  192. 

dangerous  animals,  responsibility  for  acts  of,  §  176. 

escape  of  animals,  responsibility  of  agistor,  §  185. 

fences,  agistor  to  maintain,  §  186. 

Insurers,  agistors  are  not,  §§  184,  185. 

knowledge  of  requirements  of  animals  demanded,  §  184. 

land  not  to  be  overstocked,  §  186. 

lien,  agistors  have  not  at  common  law,  §§  189,  19(). 


484  INDEX. 

Agisrors— Continued. 

possessing  right  to  animals,  §§  171,  192. 

presumption  of  due  care  and  skill,  §  187,  note  1. 

presumption  of  negligence,  §  187,  note  2. 

recovery  of  stolen  animals,  §  192. 

Roman  law  as  to,  §  184. 

sheep,  rules  of  agistment  of,  §  157. 

sheep,  agistor's  duty  as  to  infectious  diseases,  §  157. 

stolen  animals,  agistors  may  recover  and  prosecute  thief,  §  192. 

water  to  be  provided  for  animals,  §  186. 
Agriculture — National  and  State  legislation  as  to,  §  1. 

Department  of,  in  Government  of  United  States,  §  2. 
Agricultural  colleges — Acts  of  Congress  as  to,  §§  3,  4,  5. 

application  by  State,  for  survey  of  lands,  §  5. 

assignees  of  State  may  locate  land,  §  3. 

donation  of  public  lands  for,  §  3. 

each  State  to  provide  one,  §  4. 

grant  of  land  for  invalid,  unless  accepted  by  State,  §  4. 
Agricultural  societies — in  Alabama,  in  California,  in  t^olorado,  in  Connecti- 
cut, §  7. 

in  Delaware,  not  encouraged,  §  8. 

in  Delaware,  racing  forbidden  at  fairs  held  by  agricultural  societies,  §  8. 

in  Idaho,  in  Illinois,  in  Indiana,  in  Iowa,  §  8. 

in  Kansas,  in  Kentucky,  in  Maine,  §§  9, 10. 

in  Massachusetts,  in  Michigan,  in  Minnesota,  in  Missouri,  in  New  York, 

§11. 

in  Ohio,  in  Tennessee,  in  Wisconsin,  §  11. 

abuse  of  police  powers  by,  §  13. 

are  private  corporations,  §  12. 

corporate  powers  of,  §  12. 

quasi-public  character  of,  §§  13,  14. 

police  powers  at  fairs  and  exhibitions,  §  13. 

police  powers  of,  are  statutory  and  exceptional,  §  13. 

power  and  duty  to  guard  against  accidents  at  fairs,  §  14. 

power  and  duty  to  guard  against  disturbances  at  fairs,  §  13. 

power  to  license  shows  at  fairs,  §  13. 

power  to  prescribe  rules  for  exhibitions  at  fairs,  §  13. 

power  to  sue  and  be  sued,  §  12. 

property  may  be  held  by,  §  12. 

provisions  for  support  of,  §  12. 

responsibilities  of,  §  14. 

responsible  for  accidents  at  fairs,  §  14. 

responsible  for  injury  to  animals,  §  14. 

responsible  for  negligence,  §  14. 

subject  to  general  laws  affecting  corijorations,  §§  13,  14. 
Agricultural  machines — when  dangerous,  how  to  be  used,  §  61. 
Alabama — agricultural  societies  in,  §  7. 

estates  for  years  in  real  property,  §  360. 

fence  laws  in,  §§  214,  221,  230. 

fencing  against  live-stock,  §  214. 

fencing  by  railroad  companies,  §  23f5. 

fertilizers,  statutes  as  to  the  sale  of,  §  39. 

malicious  injury  to  domestic  animals.  §  197. 

malicious  mischief,  §  197. 


INDEX.  485 

Alabama— Continued. 

marks  and  brands,  §  148,  and  note, 
sheep,  protection  of  from  dogs,  §  151,  and  note. 
Alluvium— definition  of,  §  391. 

distinction  of  from  avulsion,  §  391. 
doctrine  of  applied  to  sea-weed,  §  49. 
Animals — agistors,  liability  of  for  trespass  by  animals,  §  188. 
agistor  may  bring  action  for  stolen  animals,  §  192. 
agistor  to  provide  water  for,  §  186. 
common  carriers  of,  tlieir  responsibilities,  §  291. 
common-law  rule  as  to  fencing  cattle  in,  §  209. 
contagious  diseases  of,  §§  144,  147,  155,  156. 

contagious  diseases,  keeping  animals  affected  by,  §§  144,  147,  155,  156. 
contagious  diseases,  importation  of  animals  affected  by,  §  147. 
contagious  diseases,  sale  of  animals  affected  by,  §  146. 
dairy,  lease  of,  cliaracter  of  bailment,  §§  348,  349,  350. 
cattle  not  to  be  removed  by  tenant,  §  352. 
duty  of  hirer  to  care  for  animals,  §§  350,  351,  352. 
increase  of  animals  held  under,  §  349. 
injury  to  cattle  held  under,  §  351. 
theft  of  cattle  held  under,  §  351. 
tenant's  right  of  possession  of  cattle,  §  348. 
damage  by  trespassing,  §§  188,  242. 
damage  to  by  locomotives,  §§  233,  234. 

damages  for  importation  of,  with  infectious  disease,  §§  144,  147. 
damages  for  sale  of,  witli  infectious  disease,  §§  144,  147,  155,  156. 
dangerous  animals,  damages  by,  §§  175,  176. 
liability  of  owners  of,  §§  176,  177. 
liability  of  hirer  of,  §§  179,  180. 
liability  of  joint  owners  of,  §  181. 
liability  of  o^vner  of,  when  stolen,  §  179. 
measure  of  damages  done  by,  §  182. 
ordinary  care  of  vicious  animals,  §§  176,  177. 
sale  of,  §  180. 
restraint  of,  §  175. 
when  may  be  killed.    See  Dogs. 
drovers,  their  riglits  and  liabilities,  §  401. 
escape  of,  from  agistor,  §  185. 
exemption  of,  from  seizure,  §  26. 
fencing  against,  §§  212,  213. 
fencing  against  in  North  Carolina,  §  215. 
fence- viewers  to  assess  damage  by  trespassing  animals,  §  232. 
increase  of,  §§  158,  349. 

increase  of,  when  "taken  on  shares,"  §  158. 
increase  of,  when  held  under  dairy  lease  or  contract,  §  349. 
injury  to,  when  trespassing,  §  241. 
injury  to,  when  leased,  §  349. 
injury  to.    See  Malicious  Injury. 
leased  with  land,  §  346. 

malicious  injury  to  domestic  animals,  §§  196,  207. 
"  "        of,  English  Statutes,  §  193. 

'•37  Henry  VIII,  Chap.  6,  §  193. 
((  "         "    when  "malicious  mischief,"  §  194. 

«  "         "    statutes  against,  in  United  States,  §§  198,  202. 

«  "         "    in  Alabama.  §§  197,  204. 


486  INDEX. 

Animals— Continued. 

malicious  injury  of,  in  California,  §  197. 
"  "        "     "    Georgia,  §  198. 

"  "        "     "    Illinois  and  Iowa,  §  199. 

"  "        "     "    Kansas,  Kentucky,  and  Louisiana,  §  200. 

"  "        "     "    Maryland  and  Massachusetts,  §  201 . 

"     "    Maine,  §  200. 
"  "        "     "    Michigan,  Minnesota,  Mississippi.  Missouri.  New 

Jersey,  New  York,  §  202. 
"  "        "     "    North  Carolina,  Ohio.  Pennsylvania,  Tennessee, 

§  203. 
"  "        "     "    Texas,  Vermont,  Wisconsin,  §  204. 

"malicious  mischief"  to,  burden  of  proof  of  malice,  §  197. 

"  "  "    malice  must  be  against  owner,  §§  194,  205. 

"  "  "  '■      toward  animals  insufficient,  §§  194,  205. 

marks  and  brands  on,  §  148. 
pasturage  of,  §§  184,  192.     See  A<iisTOK. 
"  "on  highway,  §  244. 

"  "   on  highway,  right  of  towns  to  impound,  §  244. 

riparian  proprietor,  his  right  to  water  stock,  §§  387,  388. 
running  at  large,  §  150. 

running  at  large,  Avhen  may  be  impounded,  §§  150,  247,  248,  and  notes, 
sale  of,  §§  103,  109,  127,  130,  133. 
sale  of,  by  sample  or  specimen.  §  127. 
sale  of,  when  taken  on  trial,  §  109. 
warranty  of  soundness  of,  §§  130,  131,  133. 
Apprentice  and  master,  §  312. 

"  "  "         in  Arkansas,  Delaware,  New  "\'ork.  §  327,  note  1. 

"  "  "         "  assent  to  contract  of  ,§  328. 

Contract  of  apprenticeship  by  minor,  §  312,  note  1. 

who  may  make,  §  312,  note  1;  §§  328,  329. 
"         "  "  to  be  in  writing,  §  329. 

correction  of  by  master,  §  330,  note  1. 
employment  of  by  third  persons,  §  330. 
enticing  away  from  master,  §  330. 

objects  of  apprenticeship,  §  .325.  * 

parents'  right  to  "bind  out""  child,  §  326. 
reciprocal  obligations  of  master  and  apprentice,  §  329. 
statutory  provisions  concerning,  §  327. 
Arizona — marks  and  brands  on  animals,  §  148,  note. 
Artifice — in  making  contracts,  §  110. 
when  it  vitiates  contracts,  §  110. 
Artisans— liens  of,  for  labor,  §§  189,  190. 
Assault — by  vicious  animals,  owner's  liability,  §  174. 
Assent — express  or  implied,  §  108. 

husband's  to  contract  by  wife,  §  105. 
to  contract,  §  108. 

to  purchase  of  animals  taken  on  trial,  §  109. 
when  must  be  mutual,  §  108. 
when  must  be  unequivocal,  §  108. 
See  Contract. 
Assignees — of  State  may  locate  "college  land,"  §  3. 
Asthma — "unsoundness"  in  ahorse,  §  1-33 
Attachment— against  factors,  §  283. 
levied  on  growing  crops,  §  24. 


INDEX.  487 


Attachment— Continued. 

priority  of  factors,  lien  over,  §  274,  note  2. 
Avulsion— definition  of,  §  391. 

distinction  of  from  alluvium,  §  391. 


Backing — when  'unsoundness,"  §  133. 

Baggage— rights  of  common  carrier  as  to,  §  29. 

Bailees — agistors,  burden  of  proof  of  negligence  by,  §  187. 

agistors,  character  of  bailment  by,  §§  157,  1.58,  159,  184,  186. 

agistors  of  sheep,  §§  157,  158,  159. 

action  of,  for  damages  to  animals,  §  159. 

for  hire,  when  he  has  a  lien,  §§  1.37,  189,  19<). 
Bailment— agistment,  §§  157,  158,  159,  184,  186. 

animals  taken  on  shares,  §§  158,  159. 

borrowers,  degree  of  care,  responsible  for.  §§  lOl,  102. 

burden  of  proof  of  negligence,  §  187. 

dairy  contracts  or  leases,  §  350. 

horse-breaking  or  training,  §  136. 

letting  dangerous  animals,  §  180. 

of  sheep,  §§  157,  158, 1.59. 

shepherd,  character  of  his  bailment,  §§  157,  158. 
Baldness — when  "  nmsoundness  "  in  a  horse,  §  133. 
Bandages — when    'unsoundness  "'  in  a  horse,  §  133. 
Barns  and  out-buildings,  repairs  to  in  farm-leases,  §  300. 
Bar-shoes — wlien necessity  for,  '"unsoundness"  in  a  horse.  §  133. 
Barter — by  factor  of  principaFs  property,  §§  279,  283. 
Bastard  strangles — "  unsoundness  "'  in  a  horse,  §  133. 
Balking — when  ■■  unsoundness  "'  in  a  horse,  §  133. 
Bent-before — when   "  unsoundness  "  in  a  horse,  §  133. 
Biting — when  a  ""  vice  "  in  a  horse,  §  133. 

Black  Act— 9  Geo.  11,  Chap.  22,  malicious  injury  to  cattle,  §  193. 
Bleeding — when  "  unsoundness  "  in  a  horse,  §  133. 
Blindness — when  '"unsoundness"  in  a  horse,  §  1:33. 
Blood-spavin — when   " unsoundness "  in  ahorse,  §  133. 
Bog  spavin — "unsoundness "  in  a  horse,  §  133. 
Bolting — a  ""vice  "  in  a  horse,  §  133. 
Bone  spavin — "unsoundness"  in  a  horse,  §  133. 
Borro"wer — degree  of  care  required  of,  §§  101,  102. 

distinguished  from  hirer,  §  101. 

of  animals,  when  responsible  for  damage  by,  §  179. 
Boundary — when  runs  to  middle  of  road,  §  2G6,  note  1. 
Breach  of  warranty— of    'unsoundness,"  §132. 
Broken-backed— when   "  unsoundness  "  in  a  horse,  §  133. 
Broken-knees — when  "  unsoundness  "  in  a  horse,  §  13.3. 
Broken-"wind — ""  unsoundness  '"  in  a  horse,  §  133. 
Brokers— agents  of  both  buyers  and  sellers.  §§  2()9,  270,  and  notes. 

deal  in  name  of  priucipal,  §  268. 

implied  warranty  of  title  by  vendor  to,  §  272. 

have  no  possession  or  control  of  property.  §  268. 

have  no  power  of  substitution,  §  270. 

real  estate,  business  and  commissions  of,  §  271. 

real  estate,  commissions  of.  dependent  on  contract,  §  271. 


488  INDEX. 

Brokers— Continued. 

real  estate,  his  commissions  when  owner  makes  sale,  §  272. 

real  estate,  his  commissions  when  title  is  defective,  §  272. 

"sold  notes  "  and  "bought  notes."     See  Factors. 
Bronchitis — "unsoundness"  in  a  horse,  §  133. 
Buildings— on  farm,  landlord  to  repair,  §  300. 
Burden  of  proof— injury  to  cattle,  §  85. 

of  malice,  in  "  malicious  mischief,"  §  195. 

of  negligence  of  agistors,  §  186. 

See  Negligence,  Railroad  Companies,  Etc. 


o. 

California — Agricultural  College,  Act  of  Congress  as  to,  §  5. 

dower,  wife  has  none  in,  §  359. 

fence  laws  in,  §  221. 

fencing  against  live-stock,  §  214. 

fencing  by  railroad  companies,  §  236. 

fire,  protection  against,  §  57. 

malicious  injury  to  animals,  §  197. 

marks  and  brands,  §  148,  and  note. 

sheep,  protection  of  from  dogs,  §  151,  and  note. 

State  Agricultural  Society,  §  7. 
Calves — contracts  as  to  raising,  §  345. 
Canker — "  unsoundness  "  in  a  horse,  §  133. 
Capped  hocks — when  "  unsoundness"  in  a  horse,  §  VXi. 
Carriers — See  Commok  Carriers. 
Cataract — "unsoundness  "  in  a  horse,  §  133. 
Cattle— §§  144,  150. 

burden  of  proof  of  negligence  in  damage  to,  §  85. 

common-law  rule  as  to  fencing  in,  §  209. 

contract  with  railroad  companies  as  to  injury  to,  §§  83,  84. 

dairy  leases  of,  §  352. 

damage  to,  by  locomotives  or  railroad  trains,  §§  78,  79. 

guards,  to  be  maintained  by  railroad  companies,  §  233. 

infectious  diseases  of,  §  146. 

liability  of  carrier  of,  §  291. 

marks  and  brands  on,  §  148. 

obligation  to  restrain  from  trespassing,  §§  88,  209. 

marks  and  brands  on,  §  148. 
Caveat  emptor— §  115. 

does  not  apply  to  title,  §  117. 

does  not  apply  when  there  is  fraud,  §  115. 

does  not  apply  when  there  is  warranty,  §  115. 

in  purchase  of  hogs,  §§  161-163. 

in  purchase  of  wool  when  packed,  §  160. 
Chancery- jurisdiction  of  Courts  over  minors,  §§  321,  322. 
Character — given  to  servant  by  master,  §  262. 
Chattels — growing  crops,  §§24,  25,  and  notes. 

growing  grass,  §  25. 

sale  of,  §§  103,  115. 
Chattel  mortgage— §§  29,  ;'.2. 

notice  of,  §§  29,  32. 

on  growing  crops,  §§  29,  32,  and  notes. 


IKDEX.  489 

Chattel  mortgage— Continued. 

record  of,  §§  29,  32. 
statutes  as  to,  §  29. 
See  Mortgage. 
Cherokee— or  Indian  cattle-fever,  §  144. 
Chest-founder — 'unsoundness"  in  a  liorse,  §  133. 
Children— contracts  by,  §  312. 

earnings  of,  §  313. 

See  Parent  and  Chii.d. 
Chinked  in  the  chine— when  ''  unsoundness"  in  a  horse,  §  133. 
Clinking— or  over-reaching,  when  "  unsoundness"  in  a  liorse.  §  133. 
Colleges— of  Agriculture  and  Mechanic  Arts,  §§  3-5. 
College  land  scrip— assignee  of  State  may  locate,  §  3. 

investment  of  money  from  sale  of,  §  4. 

location  of,  §§  3,  4. 

sale  of,  §  4. 
Colorado — agricultural  society  of,  §  7. 

marks  and  brands,  §  148,  note. 
Commission— del  credere,  §  276. 

of  broker,  when  earned,  §  271. 

merchant,  definition  of,  §  273 

of  broker,  when  forfeited,  §  286,  note  1. 
Commissioner — of  agriculture,  his  duties,  §  2. 

of  agriculture,  to  make  annual  report,  §  2. 
Common  carriers— "  Act  of  God,"  excuse  for  loss  of  goods,  §§  289,  290. 

"act  of  public  enemy,"  excuse  for  loss  of  goods,  §§  289,  290. 

discrimination  by,  §  295. 

insures  against  loss,  to  what  extent,  §§  289,  290. 

lien  of,  §  294. 

liabilities  of,  §§  289,  292,  293. 

limitation  of  responsibility  by  public  notice,  §  292. 

right  to  sell  goods  to  pay  charges,  §  294. 

special  contracts  as  to  his  liability,  §  293. 

transportation  of  live-stock,  §  291. 
Commons — grazing  cattle  on,  §  150. 
Common  law^ — adoption  of  in  the  United  States,  §  212. 

rule  as  to  agistor's  lien,  §§  189,  190. 

rule  as  to  distraining  animals,  damage  feasant,  §§  242,  243. 

rule  as  to  joint  tenancy,  §  362. 

rule  as  to  fencing  in  live-stock  by  owner.  §§  188,  209,  210,  211,  226,  244. 

rule  as  to  fencing  in  animals,  application  of  to  drovers,  §  401. 

rule  as  to  fencing  by  railroad  companies,  §  241. 

rule  as  to  partition  or  division  fences,  §§  218,  219. 

rule  as  to  prescription  to  fence,  §  216. 

rule  as  to  roads,  title  to  land  in,  §§  395,  396. 

when  repealed  by  statutes,  §§  243,  244. 
Concealment — by  vendor,  of  material  fact,  §  112. 

when  fraudulent,  §  112. 

when  special  trust  is  reposed,  §  112. 
Connecticut— Agricultural  Societies  in,  §  7. 

Board  of  Agriculture  in  State  government,  §  7. 

fence  laws  in,  §§  214,  221,  236. 

fencing  against  animals,  §  214. 

fencing  by  railroad  companies,  §  236. 

fire,  protection  against,  §  57. 


490  INDEX. 

Connecticut — Continued. 

sheep,  protection  of  from  dogs,  §  151,  and  note. 
Consideration — See  Contract,  Sale,  and  Wakranty. 
Consignment— contract  of.    See  Factor. 
Constitutionality— of  fence  laws,  §  217  and  notes, 
of  laws  for  destruction  of  dogs,  §  171. 
of  laws  to  open  private  roads,  §  40(),  and  note  1. 
of  pound  laws.    See  PorNDs. 
Construction — of  statutes  in  favor  of  debtor,  §  27. 

of  statutes  of  exemption  of  property  from  seizure,  §  27. 
Contagion — protection  of  animals  from,  §  145. 

damages  for  spread  of  among  domestic  animals,  §§  144,  147, 
Contracts — assent  of  parties  to,  §  108. 
by  agistor,  §  186. 
by  farrier,  §  142. 

by  horse-trainer  or  breaker,  §§  136,  137. 
by  drunkards,  §  103. 
by  idiots,  §  103. 

by  infants,  §§  103,  104,  105,  and  note  2. 
by  infants,  affianced  after  majority,  §  104. 
by  infants,  binds  adult  party,  §  104. 
by  infants,  general  rule  as  to,  §  104. 
by  married  women,  §§  103,  105. 
by  married  women,  when  void,  §  105. 
by  outlaw,  §  103. 
by  owner  of  stallion,  §  139. 
by  servant,  liability  of  master,  §  264. 
by  veterinary  surgeon,  §§  139,  140. 
cropping  on  shares,  §  333. 
controls  local  custom,  §  42. 
dairying  leases  and  agreements,  §  341. 
dairying  on  shares,  §  341. 
farming  agreements,  §  336. 
fraud  in,  vitiates,  §  110. 
induced  by  trick  or  artifice,  §  111. 
of  sale  of  growing  crops,  §§  34,  35 
of  service,  §  255. 
of  warranty,  §§  116,  117,  118. 
See  CJrant,  Sale,  Vendor. 
Contraction  of  hoof — when  "unsoundness  '"  in  a  horse,  §  133. 
Conversion — by  hirer  of  property,  §§  100,  :352. 

by  use  of  property  otherwise  than  as  agreed  upon,  §§  100,  352. 
by  tenant,  §  352. 
Conveyance  of  land  carries  growing  crops,  §§  16,  17. 
of  growing  trees,  §  25. 
See  Grant. 
Corns — when  "unsoundness'"  in  a  horse,  §  133. 
Corporeal  property— definition  of,  §  354. 
Coterminous  proprietors— obligation  to  fence  by,  §§  22(;.  227. 
Cough — "unsoundness  "  in  a  horse,  §  133. 
Covenants — as  to  manure,  §  42,  note  2;  §  46. 
by  agistors,  §  18(i. 
by  aliens,  §  103. 
by  drunkards,  §  103. 
by  idiots,  §  103. 


INDEX.  491 

Covenants— Continued. 

by  infants,  §§  103,  104,  105,  and  note  2. 
by  lunatics,  §  103. 
by  married  women,  §§  103,  105. 
by  outlaws,  §  103. 
by  seamen,  §  103. 
of  landlord  and  tenant,  §  296. 
See  Contracts. 
Co'ws — contract  for  dairying,  §  341. 

injury  to,  wlien  "maliciovis  mischief,"  §  194. 
See  Akuvials,  Cattle. 
Credit — sales  upon  by  factor,  §  277. 
Crib-biting — when  a  "  vice,"  §  133. 
Crops — advances  on  while  growing,  §  15. 
anticipated  crops,  disposal  of,  §  30. 
agreement  to  iiay  rent  with  part  of,  §  338. 
are  chattels,  to  what  extent,  §  25. 
attachment  on  while  growing,  §  24. 
distinction  between  natural  and  agricultural,  §  37. 
distinguished  from  trees  and  natural  products,  §  37 
executor  takes,  §  25. 
from  trees,  when  real  property,  §  25. 
harvesting  of  by  creditor  to  pay  debt,  §§  31,  32. 
mortgage  of  anticipated,  §  30. 
growing,  attachment  levied  on,  §  24. 

bound  by  mortgage  of  land,  §  21. 
chattel  mortgage  of,  §§  29,  31,  32. 
"        contracts  for  sale  of,  §  15. 
"        deed  of  land  carries,  §  19,  note  2. 

distress  upon  for  rent,  §  24.   . 
'*        execution  takes,  §  25. 

"        execution,  levy  of  upon,  §§  15,  16,  24,  25,  and  notes. 
"        execution  sale  of  land  carries,  §§  15,  16,  note  3. 
"        hogs  trespassing  ujion,  §  167. 
'■        homestead  exemption  does  not  extend  to,  §  33. 
"        interest  in  land,  §§34,  35. 
"        injured  by  trespassing  animals,  §  16. 
"        lessee  of  mortgagor  of  land,  may  lose  crops,  ■>  22,  note  4. 
"        levy  of  process  ujjon,  §  24,  note  4. 
"        mortgagor  of  land  may  lose.  §§  21,  23. 
"        mortgage  of,  §§  29,  31,  32. 

"        parol  reservation  of  on  sale  of  land,  §  20,  note  1. 
"        parol  sale  of,  §  20,  note  1. 

"        pass  on  sale  of  land,  unless  reserved,  §  16,  and  notes  2,  3;  §§  17, 
19,  and  notes, 
personal  property,  §§  19,  20,  and  note  1;  §  24,  and  note  3. 
"        reservation  of  on  sale  of  land,  when  by  parol,  §§  17,  18.  19.  and 
notes, 
reservation  of,  on  sale  of  land,  wlicn  in  wi'iting,  §  18,  and  note  1. 
"        sale  of,  §  24,  note  4. 
"        sale  of.  when  in  writing,  §§  34,  35. 
"        sheriff's  sale  of,  §  24. 
"        Statute  of  Frauds  as  to  sale  of,  §  34. 
"        subject  of  contracts,  §  15. 
"        trespass  for  removing  from  mortgaged  land,  §  22. 


492  *  INDEX. 

Crops — Continued. 

growing,  when  real  property,  §  19. 
"        when  personal  property,  §  19. 
Cropping  contract — authority  of  parties  to  bind  one  another,  §  ;J40. 

cropper's  covenants,  to  farm  in  husbandlike  manner.  §  :i35. 

cropper  not  a  laborer  for  hire,  §  333. 

distinguished  from  lease,  §§  331,  337. 

interest  in,  when  may  be  taken  on  process,  §  338,  and  note  1. 

Xjarties  to  are  tenants  in  common,  §  332. 

possession  determines  character  of  contract,  §§  334,  339. 

when  it  constitutes  partnership,  §  344. 


D. 

Dairy  contracts — animals  not  to  be  removed  from  range,  §  :W2. 

breeding  cows,  §§  343,  344. 

calves  to  be  raised,  §  345. 

characteristics  of,  §  341. 

covenant  to  raise  calves,  §  345. 

injury  of  animals  by  third  party,  §§  350,  351. 

lease  of  premises,  §§  341,  351. 

possession  of  cows,  §  342. 

theft  of  animals,  §  351. 
Dairying— on  shares,  §§  341,  351. 
Damage  by  animals  to  be  assessed  by  fence-viewers,  §  352. 

by  domestic  animals,  §§  242,  243. 

by  fire,  §  57. 

by  locomotives  to  domestic  animals,  §§  234,  341. 

to  animals  wrongfully  on  railroad  track,  §  241,  and  notes. 

to  sheep  by  dogs,  §§  151,  152,  153,  154,  156. 

to  sheep  by  dogs,  scienter,  §  172. 

to  sheep,  by  infection  from  diseased  flocks,  §  156. 

for  injury  to  dogs,  §  170. 
Damages— animals  trespassing,  §§  167,  188. 

agistor  or  owner  liable  for  injury  by  stock,  §  188. 

against  droves  of  animals,  §§  149,  401,  and  note  1. 

against  farriers,  §  142. 

against  horse-trainers,  §§  136,  137. 

against  parent  for  injury  by  minor,  §  315. 

against  owner  of  dog,  injury  to  sheep,  §§  151,  152,  156. 

owner  of  stallion,  §  138. 

against  railroad  companies,  §§  66,  233,  241. 

against  trespassers,  §  59. 

against  veterinary  surgeons,  §§  139,  140. 

by  fire,  general  rules,  §  74. 

by  fire  in  California,  Connecticut,  §  57. 

by  fire  in  Georgia,  §  58. 

by  fire  in  Illinois,  Michigan,  §  57. 

by  fire  in  Ohio,  §  58. 

by  fire  in  North  Carolina,  §  57. 

by  fire,  proximate  and  remote,  §  74. 

breach  of  warranty,  §  129. 

deceit  in  sale  of  animals,  §  1G4,  note. 

employer  liable  for  servant's  negligence,  §§  265,  266. 


INDEX.  493 

Damages— Contimied. 

infection  to  animals,  contagious  diseases  of,  §§  144-7,  155,  156. 

neglect  to  guard  dangerous  animals,  §  177. 

proximate  and  remote,  §  56. 

pollution  of  water  in  stream,  §  390. 
Dealer— definition  of  the  term,  §  288,  note  1. 

See  Factors,  Brokers. 
Death— terminates  lalaor  contract,  §  255. 
Debtor — See  Exemption. 
Dedication — of  property  to  public  use,  §  404. 

"  "     when  presumed,  §  404,  and  note  1. 

"  "     by  parol,  §  404. 

"  "     how  manifested,  §  404. 

Deed — wife  to  join  in  conveyance  of  dower,  §  359. 

when  carries  growing  crops,  §§  16,  17. 

to  growing  treees,  §  25. 

covenants  in.    See  Co^'enants. 

See  also  Lease,  Comtracts,  Grant. 
Defects — patent,  not  covered  by  warranty,  §  121. 
Delaware — fence  laws  of,  §  221. 

protection  of  sheep,  §  151,  note. 

agricultural  societies  in,  §  8. 

apprentices  in,  §  327,  note  1. 
Del  credere — definition  of,  §  276. 

See  Factors. 
Delivery — what  constitutes,  §  113. 
Department  of  Agriculture— for  the  United  States,  §  2. 

aruiiial  report  of  commissioner,  §  2. 

duties  of  commissioner,  §  2. 

See  Agricultural  Colleges,  Etc. 
Description — words  of,  when  constitute  warranty,  §  122. 
Disease — among  cattle,  laws  against,  §§  144,  145. 

"  "      damages  for  keeping,  §  145. 

among  sheep,  §  154. 
hogs,  §  161. 

what  constitutes  unsoundness,  §  133. 
Division  fence — obligation  to  build,  §  226. 

duty  of  viewers  as  to,  §  229. 

cost  of,  when  a  lien  on  land,  §  231. 

on  pond  or  water-course,  §  228. 

owner  of  uninclosed  land,  §  227. 

on  line  of  railroad,  §  237. 

duty  of  railroads  as  to,  §  233. 
See  Fences. 
Dogs— general  rules  relating  to,  §§  169,  174. 

ownership  of,  §§  169,  170. 

property  in,  §  169. 

a  species  of  property,  §  174. 

when  owner  is  protected,  §  170. 

responsibility  of  owners  for  trespass  by,  §  169. 

"  '•  "    taking  care  of,  §  173. 

how  far  considered  a  nuisance,  §  174. 

when  may  be  killed,  §  183. 

keeping  for  protection,  §  174. 

vicious,  responsibility  for,  §§  173,  174. 


494 


INDEX. 


Dogs — Continued. 

action  of  trover  for  taking  or  destroying,  §  169. 

police  power  to  regulate  keeping  of,  §  171. 

less  entitled  to  legal  protection  than  cattle,  §  169. 

lighting  among,  rules  of,  §  173. 

worrying  sheep,  liability  of  owner,  §§  154,  172. 

two  or  more  worrying  sheep,  liability  of  owners,  §  154. 

when  may  be  killed  for  worrying  sheep,  §§  151,  171. 
Domestic  animals — See  Animals. 
Domestic  relations — See  Pakent  and  Child. 
Dowrer — wife's  right  to,  in  real  property,  §  359. 
Dropsy — of  the  lieart,  "  unsoundness"  in  horse,  §  133. 

of  the  skin,  "  unsoundness"  in  horse,  §  133. 
Drovers— liabilities  of,  §  401. 

application  of  common  law  as  to  fencing  in  stock,  §  401,  and  note  1, 

rights  of  on  public  road,  §  401. 

rights  and  responsibilities  generally,  §  149. 
See  Animals. 
Drunkenness— when  invalidates  contracts,  §§  103,  107, 

effect  of,  when  voluntary,  §  107. 

temporary  insanity,  §  107. 

E. 

Earnest-money— in  buying  property,  §  161. 
Basement— definition  of,  §  364. 

general  characteristics,  §§  364,  3&i. 

when  two  distinct  estates  in  land,  §  364. 

when  positive,  §  366. 

when  positive  or  negative,  §  366. 

when  negative,  §  3(56. 

extent  of  public,  in  highway,  §§  367,  397,  399. 

distinguished  from  license,  §  366,  note. 

in  public  road,  §  395. 

acquisition  of  right  of  way  for  public  road,  §  407. 

right  of  way  over  private  road,  §  406. 

in  use  of  mill  privilege,  §  .394. 
See  Highway. 
Education — See  Pakent  and  Child. 

Ejectment — for  land  over  which  highway  runs,  §§  375,  397. 
Emancipation— of  child  by  parent,  §§  313,  314. 
Emigrants— encouragement  to  French  colonists,  §  2. 
Eminent  domain — power  to  take  private  property  for  public  use,  §  40;i. 

as  to  private  roads,  §  405,  and  note;  §  406,  and  note. 

statutes  of,  strictly  construed,  §  403,  and  note  2. 

compensation  for  taking  property,  §  403,  and  note  1. 
Employer  and  employee— See  IVIaster  and  Servant. 
Engines— use  of  on  farms,  §§  61,  63. 

sparks  from,  causing  fire,  §  57.  note  3  ;  §  63. 
England — fertilizers  in,  §  38. 

common  law  of,  §  212. 
Enlargement— of  glands,  "unsoundness"  in  horse,  §  133. 

of  liocks,  ''unsoundness"  in  horse,  §  133. 
Estates — by  sufferance,  §  361. 

at  will,  in  real  property,  §  .3(31. 


INDEX.  405 


Estates — Continued. 

for  years,  §  360. 

for  life,  §  357. 

tail,  §  356. 

by  curtesy,  §  358. 

in  land  used  by  public  road,  §  39T. 
Estrays— §§  242,  248. 
Evidence— burden  of  proof  in  case  of  fire,  §§  55,  56,  62, 

burden  of  proof,  in  damage  to  live-stock,  §  85. 

in  cases  of  Are  by  locomotives,  §§  66,  69,  70. 

in  action  for  killing  cattle  by  railroad,  §  78,  and  notes. 
Execution— levy  of,  when  void,  §  35. 

levy  of,  upon  growing  crops,  §§  15,  24,  and  note  4 

against  landlord,  effect  upon  crop,  §  16. 

against  factors,  §  283. 

property  exempt  from.     See  Exemption. 
Executor — right  of,  to  growing  crops,  §  25. 
Exemption— a  personal  right,  §  28. 

debtor  may  waive  or  claim,  §  28. 

"       need  not  designate  articles,  §  28. 

statutes  of,  how  construed,  §  27. 

construed  against  debtor,  §  27. 

levy  should  be  made  upon  articles  not  exempt,  §  28, 

of  growing  crops,  §  26. 

crops  on  homestead  exempt,  §  33. 
Experimental  farms— establishment  of,  §  4. 
Express  warranty — See  Wakkanty. 


F. 

Factors — distinguished  from  brokers,  §  268. 

are  agents  of  both  seller  and  buyer,  §  269. 

foreign  and  domestic,  distinguished,  §  275. 

must  obey  instructions,  §  284. 

what  degree  of  care  required  of,  §  286. 

buy  and  sell  in  their  own  names,  §§  268,  273. 

may  sue  in  their  own  names,  §  274. 

when  principal  may  sue  in  own  name,  §§  275,  276. 

title  to  goods  remains  in  consignor,  §  280. 

duty  of,  in  absence  of  instructions,  §  286,  note  1. 

after  advances  made,  free  of  instructions,  §  284. 

purchase  by,  of  consigned  goods,  §  285. 

possession  and  control  of  goods,  §§  268,  273. 

business  of,  notice  of  agency,  §  282. 

may  insure  goods,  §  274. 

del  credere  defined,  §  276. 

bankruptcy  of,  rights  of  creditors  and  consignors,  §  283. 

consignments  not  liable  for  debts  of,  §  283. 

lien  of,  priority  over  attachment,  §  274,  note  2. 

"     "    dependent  on  possession,  §  274,  note  1. 

••     "    to  what  extends,  §  274. 

■'  "  as  to  advances  made  on  crops,  §  15,  note  1. 
principal  presumed  to  know  usages  of  trade,  §  277. 
goods  not  to  be  pledged,  §  279. 


496  INDEX. 

Factors — Continued. 

when  goods  may  be  pledged,  §  278. 
pledge  by,  liability  of  pledgee  to  owner,  §§  281,  282. 
goods  not  to  be  bartered,  §  279. 
how  far  are  trustees,  §  285. 
identity  of  goods  raises  a  trust,  §  283,  note  1. 
when  commissions  forfeited,  §  286,  note  1. 
not  deemed  insurers  of  goods,  §  286. 
producer's  right  to  sell  as  a  factor,  §  288. 
Falsehood — as  affecting  sales,  §  112. 

warranty,  §§  123,  126. 
False  quarter — "  unsoundness"  in  horse,  §  133. 
Farcy — "  unsoundness  "  in  horse,  §  133. 
Farms,  experimental — establishment  of,  §  4. 
Farriers — rights  and  duties  of,  §  142. 
skill  required  of,  §  142. 

not  to  refuse  to  shoe  horse  unless  dangerous,  §  142. 
damage  for  negligence,  §  142. 
measure  of  compensation,  §  142. 
lien  of,  only  for  last  job,  §  143. 
Fee-simple — estate  of,  in  real  property,  §  355. 
Fences — common-law  rule,  §§  188,  208. 
rule  in  United  States,  §§  210,  211. 
rules  as  to,  how  far  are  of  general  application,  §  213. 
belong  to  realty  although  detached,  §  45. 
duty  of  agistor  as  to,  §  186. 
o^vne^  of  cattle  to  fence  them  in,  §  88. 
obligation  of  coterminous  owners,  §  226. 
owners  of  unin closed  land,  obligations  of,  §  227. 
when  cannot  be  removed,  §  227. 
on  public  lands,  §  308,  note  1. 
when  held  to  be  fixtures,  §  44,  note  2. 
may  be  solely  dependent  on  contract,  §  81. 
covenants  as  to,  running  with  the  land,  §  216. 
repair  of,  in  farm  leases,  §  .300. 
lawful  fences,  §§  217,  232. 
constitutionality  of  fence  laws,  §  217. 
laws  relating  to,  general  characteristics  of,  §  219. 
lawful  fences,  understood  when,  §  220. 
what  equivalent  to  lawful  fence,  §  225. 
viewers,  duties  of,  §§  229,  230. 

"        jurisdiction  how  acquired,  §§  229,  230. 

"        to  settle  disputes  as  to  division  fence,  §§  229,  2;30. 

"        decide  as  to  suificiency  of  fence,  §  225. 

"        to  allot  portion  of  fence  to  each  owner,  §  229. 

"        disti-aining  animals  doing  damage,  §  242. 

"        to  assess  damages  by  animals,  §  232. 
railroads,  English  and  American  as  to  rules,  §  88. 

"  contract  by  with  owner,  §§  83,  84. 

"  to  maintain  fence,  where  right  of  way  granted,  §  82. 

"  to  keep  gates  closed,  §§  89,  90. 

"  fences  adjoining,  maintenance  of,  §  81. 

"  obligations  of  owner,  §  78,  note  1. 

"  obligations  of  railroad  company,  §§  2-33,  234. 


INDEX.  497 

Fences— Continued. 

State  Laws  as  to,  §§  210,  211. 
Alabama,  §§  214,  221,  236. 
Arkansas,  §  221. 
California,  §§  214,  221,  236. 
Connecticut,  §§  214,  221,  236. 
Delaware,  §  221. 
Georgia,  §§  214,  221,  236. 
Illinois,  §§  221,  236. 
Indiana,  §§  214,  221,  237. 
Iowa,  §§  214,  221,  237. 
Kansas,  §§  214,  221. 
Kentucky,  §§221,  2.37. 
Louisiana,  §  238. 

Maine,  Massachusetts,  Michigan,  Minnesota,  §§  214,  240. 
Mississippi,  Missouri,  New  Hampshire,  §§  238. 
New  Jersey,  §  214. 
New  York,  §  238. 
North  Carolina,  §  215. 
Ohio,  §  239. 

Pennsylvania,  §§  214,  239. 
South  Carolina,  §  239. 
Tennessee,  §§214,  239. 
Texas,  §  214. 
Vermont,  §§  214,  240. 
Wisconsin,  §  239. 
Fertilizers — history  of,  §  38. 
general  rules  as  to,  §  38. 
statutes  relating  to,  §  39. 
Alabama,  Georgia,  Maryland,  §  39. 
New  Hampshire,  §  39. 
North  Carolina,  §  40. 
See  Manube. 
Fire — general  rxile  as  to  damage  by,  §  50. 
right  to  dear  land  by  burning,  §  54. 
burning  stubble,  §  53. 
caused  by  hunters,  §  GO. 
"        "  trespassers,  §  59. 
"        "  steam-thresher,  §  01. 
"        "  negligence  of  tenant,  §  305. 
"        "  railroads,  §  57,  note  3  ;  §  0.3,  note  3  ;  §§  05,  06. 
"        "  railroads,  spread  of,  §§  50,  52,  75. 
"        "  "  burden  of  proof,  §§  55,  50,  70. 

"        "  "  farmers  to  guard  against,  §§  70,  77. 

"        "  "         plowing  as  a  preventive,  §  70,  note  1. 

"        "  "  damages  jiroximate  and  remote,  §  74. 

"        "  "  English  rule,  §§  52,  65. 

"        "  "  American  rule,  §  GO. 

"        "  "  duty  of  extinguishing,  §  73. 

"        "  "  distinguished  from  injuring  cattle,  §  85,  note  1. 

Btate  La'ws — California,  Connecticut,  §  57. 
Illinois,  Carolina,  §  57. 
Georgia,  Michigan,  Ohio,  §  58. 
Fixtures — fences  and  buildings  on  i:)ublic  lands,  §  30,  note  1. 

Farm— 32. 


498  INDEX. 

Fixtures— Continued. 

when  belong  to  freehold,  §  44,  and  notes. 

rule  of,  as  to  farm  leases,  §  309. 

right  of  tenant  to,  §  308. 

rule  as  to  fences  and  poles,  §  44,  and  notes. 
Florida— Agricultural  College  of,  §  5. 

"  "        land  scrip,  §  5. 

laws  of,  as  to  marks  and  brands,  §  148,  note. 
Forcible  entry  and  detainer — as  to  dairy  contracts,  §  346. 
Forestalling  the  market— §  287. 
Forfeiture— of  animals  under  pound  laws,  §§  244,  246. 
Fraud — vitiates  all  contracts,  §  110. 

when  a  matter  of  fact  for  jury,  §  110. 

only  injured  parties  can  complain,  §  110. 

by  both  parties,  effect  of,  §  110. 

caveat  emptor  does  not  apply,  in  cases  of,  §  115. 

when  operates  as  a  warranty,  §  128. 

when  concealment  operates  as  warranty,  §  128. 

in  jirocuring  lease,  §  304. 

in  sale  of  wool,  §  160. 

in  sale  of  hogs,  §  165. 
Frauds,  Statute  of — as  to  sale  of  growing  crop.  §  34. 

sales  by  brokers  and  factors,  §  269. 
Freight — See  Common  Carriers. 

French  emigrants — inducements  to    colonize    in  U.  S. ,  §  2. 
Fruit — remarks  concerning,  §  25. 

G-. 

Georgia— laws  of,  as  to  fences,  §§  214,  221. 

duty  of  raUroads  to  fence,  §§  234,  236. 

protection  of  sheep,  §  151,  note. 

marks  and  brands,  §  148,  note. 

fertilizers,  §  39. 

malicious  injury  to  animals,  §  198. 

estates  for  years,  §  360. 
Gibing — when  unsoundness  in  horse,  §  133. 
Glands — diseases  of,  when  unsoundness  in  horse,  §  133. 
Glanders — unsoundness  in  a  horse,  §  133. 
Glaucoma — unsoundness  in  a  horse,  §  133. 
Gleet,  nasal — vmsoundness  in  an  animal,  §  133. 
Goggles — unsoundness  in  sheep,  §  133. 
Grant — when  carries  growing  crops,  §  17. 

growing  trees  as  subject  of,  §  25. 

of  mill  privilege,  §  394. 

of  right  of  way  for  public  road,  §  402,  and  notes. 

of  right  to  taint  water  in  a  stream,  §  390. 
Grass — part  of  realty,  §  25. 

growing,  not  a  chattel,  §  25. 

not  growing  crop,  §  25. 

execution  not  leviable  upon,  §  25. 

on  highway,  ownership  and  right  to  cut,  §  400,  and  note  2. 

right  to  clear  land  by  burning,  §  54. 

liability  for  damages  by  tire.    See  FniES. 

liability  for  fu-es  caused  by  locomotives.    See  Railroad  Company. 


INDEX.  499 

Growing  crops— ownership  of  depends  on  oA\Tiersbip  of  land,  §  15. 

part  of  the  estate,  §§  17,  19. 

distinguished  from  trees,  grass,  etc.,  §  25. 

pass  by  sale  of  land,  §§  IG,  17, 19,  note  2. 

may  be  the  subject  of  contract,  §§  15,  24,  note  4. 

when  considered  personal  property,  §§  15,  19,  24,  note  3. 
"  "  chattels,  §  23,  note  1;  §  24,  note  1;  §  25. 

sales  of,  §  24,  note  1. 

upon  leased  land,  §  15. 

tenant  may  enter  on  land  to  harvest,  §  15. 

distress  for  rent  may  be  levied  on,  §  24. 

when  lessee  has  no  right  to,  §  22. 

replevin  for,  against  tenant,  §  23,  note  1. 

lessee  of  mortgagor  not  entitled  to,  §  22,  note  4. 

how  affected  by  grant  of  land,  §§  KJ,  17. 

reservation  of  by  grantor,  §  17. 

by  parol,  §§  18,  note  1;  §  19. 
should  be  in  writing,  §§  18-20. 

mortgagor  cannot  protect  from  mortgage,  §  23. 
"  "        lease  the  land,  §  23. 

security  for  money  loaned  on  land,  §  21. 

advances  on,  when  protected,  §  15. 

chattel  mortgage  upon,  §  29. 

effect  of  mortgage  on  land,  §  21. 

levy  upon,  of  execution,  §§  15,  24,  25. 

pass  to  purchaser  at  sheriff's  sale,  §  16,  and  note  3. 

sheriff  may  carry  away,  §  24. 

sheriff  may  sell  on  the  ground,  §  24. 

purchaser  may  maintain  action  for,  §  22. 
"  must  allow  to  mature,  §  20. 

exemption  from  seizure,  §  26. 

damage  to  by  locomotives.    See  R.ulroad  CoMP^iNiES,  Crops. 
Guano— as  a  fertilizer,  statutes  concerning,  §  40. 
Gtiardian  and  ward — relation  of,  §  319. 

jurisdiction  of  Courts  over,  §§  321,  322. 

authority  of  guardian,  §  320,  note  1. 

duty  of  guardian,  §  .320. 

investment  of  funds,  §  .324. 

guardian  to  take  no  risks,  §  323. 

interest  on  trust  fund,  §  324. 

examples  of  malfeasance,  §  323,  note  1. 

mismanagement  of  funds,  §  323,  note  1. 

accountability  of  guardians,  §  323. 

liability  for  theft,  §  324,  note  1. 
Gutta  levena— unsoundness  in  a  horse,  §  133. 

H. 

Harboring— of  dangerous  animals,  §  178. 
Hereditaments— what  are,  §  354. 
High-water  mark— rule  of,  as  boundary,  §  49. 
Highway — definition  of,  §  406. 

rights  of  the  public  in,  §§  398,  397,  399. 

title  to  the  land  in,  §§  396,  397. 


600  INDEX. 

High'way— Continued. 

rights  of  owner  in  fee,  §§  375,  4(X). 
action  for  trespass  on,  §  397. 
prescription  as  to,  §  402,  and  notes, 
regarded  as  easement,  §  367. 
public  right  of  vray,  §§  367,  400. 
OTVTier  of  adjoining  land,  rights  of,  §  395. 
uses  to  wliicli  may  be  put,  §  378. 
private  roads,  legislation  as  to,  §§  405,  406. 
animals  running  at  large  in,  §§  244,  246. 
upon  sea,  and  navigable  waters.  §  379. 
Hiring — distinguished  from  borrowing,  §  101. 
conversion  of  thing  hired,  §  100. 
sale  of  thing  hired,  §  98,  note  3. 
contract  terminated  by  abuse  of  thing  hired.  §  100. 
of  animals,  nature  of  contract,  §  91. 
acts  which  violate  contract,  §  93. 
imiDlied  warranty  of  title,  §  93. 
warranty  of  possession,  §  91. 
special  covenants,  §  92. 
taking  on  trial  not  a  hiring,  §  109. 
title  acquired  by  hirer,  §  99. 
risk  of  accidents,  §  95. 
negligence  of  hirer,  §§  97,  179. 
hirer's  servant,  §  98. 
evidence  in  action  for,  §  98. 
responsibility  in  case  of  theft,  §  96. 
hirer  liable  for  servant' s  negligence,  §  98. 
expenses  of  medical  treatment,  §  94,  note  4 :  ^95. 
shoeing  horse,  §  94,  note  4. 
feeding  and  protecting,  §  94. 
of  persons.    See  oSIaster  .ajsd  Serva>t. 
of  real  property.    See  La^tdlord  axd  Tenant. 
Hocks — enlargement  of,  when  unsoundness,  §  133. 
Hogs — affected  by  contagious  diseases,  §  163. 

trespassing,  may  be  driven  oif,  §§  167,  168. 
lawful  fences  against.  §  167. 
found  doing  damage,  §  167. 
injury  to,  when  damage  feasant,  §  168. 
See  A>i:\L.\Ls. 
Homestead — applications  for  agricultural  lands,  §  5. 

crops  growing  upon,  not  exempt,  §  33. 
Hops — are  personal  iiroperty,  §  25. 
Horse — breaker  of,  rights  and  duties  of,  §  i;35. 
skill  required  of,  §§  135,  i:36. 
lien  for  fees,  §  137. 
wanton  injury  to,  §  191. 

frightened  by  dogs,  owner's  responsibility.  §  174. 
application  of  the  term  "unsoundness,"  §  130. 
liability  of  common  carrier  for  injuries  to.  §  291.  note  2. 
hiring  of,  §  91. 
expenses  of  hirer  for  medical  treatment,  §  94,  note  4 ;  §  95. 

"         "       "      "    shoeing,  §  94,  note  4. 
liability  for  theft,  §  96. 
hirer  must  feed  and  care  for,  §  94. 


INDEX.  601 


Horse— Continued. 

risk  of  accidents,  §  95. 

negligence  of  hirer,  §  97. 
See  -A^iM.\is. 
Hunters— fire  caused  by,  §  60. 
Husband  and  wife— right  of  dower,  §  359. 

assent  to  wife's  contracts,  §  105. 

estate  in  curtesy.  §  .358. 
Husbandlike  manner— definition,  §  42. 

covenant  for,  implied,  §  335. 


Idaho — la-svs  of,  as  to  marks  and  brands,  §  148,  note. 

protection  of  sheep  from  dogs,  §  151,  note. 

Territorial  Agricultural  Society,  §  8. 
Idiots — incompetency  of,  to  make  contracts,  §§  103,  106. 
Ignorance — of  vicious  propensities  of  animals,  §  153. 
Illinois — agricultural  societies  of.  §  8. 

fence  laws  of,  §  221. 

duty  of  railroad  company  to  fence,  §  236. 

laws  relating  to  marks  and  brands,  §  148,  note. 

malicious  injury  to  animals,  §  199. 

laws  relating  to  fire.  §  57. 
Immediate  damages — but  not  remote,  recoverable,  §  156. 

for  injury  to  sheep  by  contagion,  §  156. 
Implements — on  farm,  when  dangerous,  how  used,  §  61. 

steam-thresher  is  an  "  agriciiltural  implement,"  §  61,  note  1. 
Implied  covenants — §  186. 

Implied  grant — of  right  of  way  on  sale  of  land,  §§  370,  374,  and  notes. 
Implied  -warranty — §  124. 

when  buyer  relies  on  vendor's  judgment,  §  126. 

by  expression  of  opinion,  §  128. 

by  fraudxilent  representations,  §  128. 

on  sale  by  sample,  §  127. 

that  bulk  corresponds  with  sample,  §  124. 

that  property  is  merchantable,  §  124. 

that  property  is  of  specific  character,  §  124. 

where  buyer  can  inspect,  §§  125,  126. 

where  buyer  cannot  inspect,  §  125. 

where  vendor  has  possession,  §  124. 

where  vendor  has  not  possession,  §  124. 

against  latent  defects,  §§  124,  126. 

as  to  breed  of  animals,  §  125. 

on  sale  of  seeds,  §  129. 

on  sale  of  hogs,  §  164. 
See  ^VaPvE-Vntt. 
Importation — of  infected  cattle.  §  147. 
Increase — of  animals.  riUe  as  to  under  lease,  §  349. 

of  sheep,  taken  on  shares,  §  158. 

of  animals,  on  dairying  lease  or  contract,  §  349. 
See  A>-rMALS,  Ckops. 
Incorporeal — definition  of  the  term,  §  354. 
Incumbrances — ^See  Laxdlord  .a^td  Texa>-t. 
Indiana — agricultural  coUege  in,  §  5. 


502  INDEX. 

Indiana— Continued. 

State  Board  of  Agriculture,  §  8. 

agricultural  college  land  scrip,  §  5. 

agricultural  societies,  §  8. 

fence  laws  of,  §  221. 

fencing  against  live-stock,  §  214. 

fence  laws  as  to  railroad  companies,  §§  234,  237, 

laws  relating  to  marks  and  brands,  §  148,  note. 
Infants — contracts  with,  §§  104,  312. 

incompetent  to  make  sales,  §§  103,  104. 

may  avoid  contracts,  §  104. 

may  affirm  contract  at  majority,  §  104. 

plea  of  infancy  to  be  made  only  by  infant,  §  104. 

contracts  of,  for  service,  §  255,  note  2. 

earnings  of,  §  313. 

See  P.^JiENT  AND  Child. 
Infectious  diseases— of  cattle,  statutes  concerning,  §§  144,  145. 

of  sheep,  §  155. 

importation  of,  §  147. 
Injunction— against  alterations  by  tenant,  §  301. 
Insane  persons— incompetency  of  to  do  business,  §§  103,  106. 
Insurance— factors  may  make,  §  274. 
Insurer— agistor  is  not,  §  185. 

when  owner  of  vicious  animal  is,  §  176,  and  note. 

master  is  not  as  to  servant,  §§251,  261. 

how  far  common  carrier  is,  §§  289,  290. 

tenant  is  not,  against  injuries,  §  307. 
Interior— Secretary  of,  duties  relating  to  college  land  scrip,  §  3. 
Iowa— State  Agricultural  Society,  §  8. 

laws  as  to  marks  and  brands,  §  148,  note. 

malicious  injury  to  domestic  animals,  §  199. 

prevention  of  contagious  diseases  among  cattle,  §  144. 

fence  laws,  §§  214,  221. 

fence  laws  as  to  railroad  companies,  §  237. 
Irrigation— artificial  rather  than  natural  use  of  water,  §  388. 
rights  of  riparian  owner,  §  388. 
See  Water. 
Islands— in  a  river,  ownership  of,  §  392. 
Inventions— adoption  of,  for  fire-engines,  §  63,  note  1 ;  §  65. 
approved,  to  be  employed,  §  72,  note  1. 


Jaundice— or  yellows  ;  when  "  imsouudness"  in  a  horse,  §  133 

Joint  owners— of  dangerous  animals,  §  181. 

Joint  tenancy— in  real  property,  §  362. 

Jus  accressendi— right  of  survivorship,  §  362. 


K. 


Kansas— agricultural  societies  in,  §  8. 
fence  laws  in,  §§  214,  221. 
lawful  fences  in,  §  221. 


INDEX.  503 


Kansas— Continued. 

malicious  injury  to  animals,  §  200. 

marks  and  brands,  §  148,  note. 
Keeper— of  vicious  animals,  §§  172,  177. 

of  dangerous  animals,  responsible,  §  177. 

of  sheep-killing  dog,  responsible,  §§  172,  177. 
Kentucky— board  of  agriculture,  §  9. 

fence  laws  in,  §  221. 

malicious  injury  to  animals,  §  200. 

protection  of  cattle  from  disease,  §  145. 
Kicking— in  stall,  when  a  "vice,"  §  133. 
Kidney-dropping— "  unsoundness  "  in  a  horse,  §  133. 
Killing— of  domestic  animals,  when  vicious,  §  183. 


Lameness — "  unsoundness  "  in  a  horse,  §  133. 
Laminitis— "  unsoundness"  in  a  horse,  §  133. 
Lampas — when  "  unsoundness  "  in  a  horse,  §  133. 
Land — between  high  and  low-water  mark,  §  379. 

bounded  by  navigable  waters,  §  379. 

bounded  by  streams  not  navigable,  §  .380. 

owner  of  entitled  to  accretion,  §  391. 

public,  devoted  to  States  for  agricultural  colleges,  §  3. 

sale  of  carries  growing  crop,  §  15,  and  notes  2,  3,  and  4  ;  §  16. 

sale  of  an  execution  carries  growing  crop,  §  1(5. 
Landlord  and  tenant— agreement  to  pay  rent  with  fraction  of  crop,  §  338. 

alterations  by  tenant,  §  301. 

care  of  property  by  tenant,  §  307. 

covenant  against  incumbrances,  §  297. 

covenant  for  jjeaceful  possession,  §  296. 

cropping  contract,  §  337. 

crops  remaining  on  land  after  end  of  term,  §  36,  note  1. 

custom,  effect  of  on  parties,  §  407,  note  1. 

dairy  lease,  §§  346-8. 

dairy  lease,  cattle  not  to  be  removed,  §  352. 

dairy  lease,  increase  of  animals,  §  49. 

dairy  lease,  duty  of  tenant,  §§  350-2. 

distress  for  rent,  §  302. 

fuel,  tenant's  right  to  take,  §  306. 

lixtures,  removal  of,  §  308. 

fraiid  in  procuring  lease,  §  304. 

manure,  ownership)  of,  §§  41,  46. 

possession,  covenant  for,  §  296. 

possession  of  tenant,  rent  dependent  on,  §  346. 

possession,  interference  with  by  landlord,  §§  347,  348. 

preservation  of  property  by  tenant,  §  307. 

relation  of  distinguished  from  that  of  cropping  on  shares,  §  331. 

rent,  loss  of  by  interference  with  tenant's  possession,  §§  34&-8. 

rei^airs,  general  rules  as  to,  §  299. 

rei^airs,  general  rules  as  to  in  farm-leases,  §  300. 

taxes,  general  rule  as  to  payment  of,  §  298. 

waramty  of  peaceable  possession,  §  93,  note  2. 


504  INDEX. 

Larceny — by  bailee  of  property,  §  90. 
of  dogs,  §  1C9. 

of  property  liii'ed  out,  §  96,  note  1. 
Lawful  fences— §§  217,  232. 

statutory  provisions  as  to,  §§  217,  225. 

Alabama,  Arkansas,  California,  §  221. 

Connecticut,  Delaware,  Georgia,  §  221. 

Illinois,  Indiana,  Iowa,  §  221. 

Kansas,  Kentucky,  §  221. 

Maryland,  §  223. 

Michigan,  Minnesota,  Mississippi,  §  222. 

Missouri,  Nebraska,  New  Hampsliire,  §  222. 

New  Jersey,  §  222. 

New  York,  North  Carolina,  Pennsylvania,  §  223. 

Ehode  Island,  SoiUh  Carolina,  Tennessee,  §  222 

Texas,  Vermont,  Mrginia,  §  222. 
West  Virginia,  Wisconsin,  §  223. 
Lease — of  real  and  personal  property  together,  §  346. 

See  L.\NDLORD  AND   TENANT. 

Lending — general  principles,  §  101. 

dangerous  animals,  §  180. 
Lessee — of  mortgagor,  his  risk  in  cropping,  §  22,  note  4. 

should  examine  title,  §  23. 

See  Landlord  and  Tenant. 
Levy— of  execution,  duty  of  sheriff,  §§  25,  28. 

imi^lies  riglit  to  sell,  §  24,  and  note  1. 

on  growing  crojis,  §  24,  and  notes. 
See  Execution. 
License — distiuguislied  from  easement,  §  366,  note. 

pursuit  of  sjiecilic  business,  §§287,  288,  and  note  1. 

use  of  laud  for  public  road,  §  402. 
Life  estates — in  real  property,  §  357. 
Liens— dependent  on  possession,  §§  137,  189,  190,  274,  note  1. 

effect  of,  on  land  as  between  landlord  and  tenant,  §  297. 

of  agistor,  §§  189,  190. 

of  artisan,  §§  189,  190. 

of  bailee,  dependent  on  right  to  possession,  §  137. 

of  common  carrier,  §  2!)4. 

of  factors,  §  274. 

of  factors,  priority  of  over  attachments,  §  274,  note  2. 

of  factors,  to  what  it  extends,  §  274. 

of  farriers,  §  143. 

of  farriers,  only  for  last  job  done,  §  143. 

of  horse-trainer,  §  137. 

of  persons  compelled  to  serve,  §§  189,  190. 

of  stander  of  stallion,  §  138. 

of  veterinary  surgeon,  §  141. 
See  Mortgage. 
Liver  disease — unsoundness  in  a  horse,  §  133. 
Live-stock — burden  of  proof  in  damage  to,  §  85. 

damage  to  by  railroads,  §  78. 

distinction  between  lending  and  liiring  out,  §§  101,  102. 

hiring  of,  §91. 


INDEX.  50.' 

Live-stock— Continued. 

hiring  of,  risk  of  accidents,  §  95. 

hiring  of,  risk  of  loss  by  tlieft,  §  96. 

hirer  of,  his  duties  to  feed  and  care  for,  §  94. 

injury  to  when  running  at  large,  §  81. 

liability  of  common  carrier  of,  §  291. 

obligations  to  fence  in,  §  88. 

railroad  companies'  liability  for  injury  to,  §§  83,  90. 
See  Railroad  Coivipanies,  Animals. 

running  at  large,  §  81. 
See  Anemals. 
Loan — distinguished  from  hiring,  §§  101,  102. 
Location — of  land  by  college  scrip,  §  4. 
Locomotives— damage  by,  to  live-stock,  §§  78,  90. 

fires  by,  approved  inventions  to  guard  against,  §  72,  note  1. 

fires  caused  by,  §  57,  note  .3 ;  §  63,  and  notes ;  §§  65-7. 

fires  caused  by  in  Maryland,  §  67. 

fires  caused  by  in  Massachusetts,  §  67. 

fires  caused  by  in  Xew  Hampshire,  §  67. 

how  to  be  run  to  avoid  causing  fires,  §  72. 
See  Railroad  Companies. 
Louisiana — malicious  injury  to  domestic  animals,  §  200. 
Lunatics — incompetent  to  make  contracts,  §  103. 
Lung  disease — "unsoundness"  in  a  horse,  §  133. 


M. 

Machines— use  of  on  farm,  §  61,  note  1;  §§62,  63. 
Maine— Agricultural  College  of,  §  0. 

common-law  rule  as  to  fencing,  §  210. 

exception  to  rule  as  to  high-water  mark,  §  49. 

fence  laws  in,  §§  214,  222. 

fencing  against  live-stock,  §  214. 

malicious  injury  to  domestic  animals,  §  200. 
Majority— legal  age  of,  §  104. 
Malice— against  owner  of  animal  in  "malicious  mischief,"  §§  195,  205. 

burden  of  proof  of  when  animals  are  injured,  §§  195.  206. 

damages  for,  generally,  §  182. 

damages  for  in  case  of  lire,  §  56. 

definition  of,  §  206. 

fact  to  be  determined  by  jury,  §  206. 

presumption  of  when  animals  are  injured,  §§  195,  205. 

not  to  be  inferred  from  killing  animals,  §  205. 
Malicious  injury— of  property,  §§  193,  207. 

of  domestic  animals,  §§  170,  193,  207. 

of  dog,  §  170,  and  note  1. 
Malicious  mischief— American  common  law  as  to,  §  194. 

at  common  law,  luiknown,  §  193. 

English  statutes,  37  Henry  VIII,  Chap.  6,  §  193. 

indictable,  §  194. 

malice  against  owner  of  property,  fjravamen  of,  §  205,  and  notes. 
■      presumption  of  malice  in  wanton  mischief,  §  195. 

tendency  of,  to  produce  breaches  of  the  peace,  §  VM. 


506  INDEX. 

Malicious  mischief — Continued. 

wanton  injury  of  domestic  animals,  §§  193,  205. 

wanton  injury  to  domestic  animals,  statutes  of  Alabama,  California,  §  197. 

Georgia,  §  198. 

Illinois,  Iowa,  Kansas,  §  199. 

Kentucky,  Louisiana,  Maine,  §  200. 

Maryland,  Massachusetts,  §  201. 

Michigan,  Minnesota,  Mississippi,  §  202. 

wanton  injury  to  domestic  animals,   statutes  of  Missouri,  New  Jersey, 

New  York,  §  202. 
North  Carolina,  Ohio,  Pennsylvania,  Tennessee,  §  203. 
Texas,  Vermont,  "Wisconsin,  §  204. 
Mallenders— "unsoundness"  in  ahorse,  §133. 
Malpractice — against  veterinary  surgeons,  §  140. 
Mange — "  unsoundness"  in  animals,  §  133. 
Manure— belongs  to  owner  of  land,  §§  41,  45. 

custom,  how  far  it  controls  ownershii^  of,  §  41,  and  notes;  §§  42,  47. 

English  rule  as  to,  §  42. 

ownership  of,  as  between  executor  and  heir,  §  44. 

"  "    "         "        vendor  and  vendee  of  land,  §§  43,  45,  46. 

"  "    rule  of ,  in  England,  §  42. 

"  "    in  Massachusetts,  §  43. 

"  "     "  North  Carolina,  §  48. 

"  "    "  the  United  States  generally,  §  43. 

"  "    statutes  as  to,  in  the  several  States,  §§  39,  40. 

sea-weed,  right  to  collect  for  manure,  §  49. 
See  Fertilizers. 
Marks  and  brands — statutes  as  to,  §  148,  and  notes. 
Maryland— agricultural  societies  in,  §  10. 
estate  for  years  in,  §  3G0. 
fences  and  fence-laws  in,  §  223. 
fertilizers,  statutes  as  to,  §  39.! 
tires  by  sparks  from  locomotives,  §  G8. 
malicious  injury  to  domestic  animals,  §  201. 
sheep,  protection  of  from  dogs,  §  151,  and  note. 
Massachusetts — agricultural  societies  in,  §  10. 
board  of  agriculture,  §  10. 

contagion,  protection  of  cattle  from  disease  by,  §  144. 
exception  as  to  rule  of  high-water  mark,  §  49. 
fencing  and  fence  laws,  §§  214,  222. 
fencing  by  railroad  companies,  §  240. 
tires  by  sparks  from  locomotives,  §  G8. 
malicious  injury  to  domestic  animals,  §  201. 
manure,  ownership  of,  §  44. 

sheep,  protection  of  from  dogs,  §  151,  and  note. 
Master  and  servant — agency  of  servant  for  master,  §  264. 
character  to  be  given  by  master  at  end  of  service,  §  262. 
contract  between,  §§  255,  259. 
dismissal  of  servant,  §§  249,  257. 

"  "        causes  for,  §  254,  and  notes  ;§  256. 

"  "        without  i^ayment  of  wages,  §§  254-7 

enticing  servant  away  from  emx^loyer,  §  263. 

emf)loyer,  his  duty  to  guard  against  accident  to  servant,  §  250,  and  notes; 
§  251. 


INDEX.  507 

Master  and  servant— Continued. 

employer,  liability  of  for  servant's  negligence,  §  98. 

"         "on  contracts  made  by  servant,  §  2CA. 
"  should  provide  for  servant,  §  250. 

"  should  guard  servant's  health,  §  2G1. 

to  give  notice  to  servant  of  special  risks  or  dangers,  §  251,  and 

notes, 
to  give  notice  to  servant  of  vicious  propensity  of  animals,  §  251, 
and  notes. 
"  to  regulate  hours  of  labor,  §  252. 

servant,  accepting  other  employment  than  that  of  his  employer,  §  258. 
"        "  character  "  to  be  given  to,  §  262. 

liability  of  to  master  for  losses  by  misconduct  or  carelessness  § 
'267. 
"        misconduct  of,  §  256. 
"        obedience  to  employer's  orders,  §  249,  and  note  1. 

"  "  "  "        as  to  absence  from  work,  §  253. 

risk  of  life  or  health  of,  §§  250,  251. 
"        sickness  of,  §§  251,  255. 

"  "        "his  medical  bills  and  attendance,  §  260. 

"        to  reimburse  master  for  damages  paid  by  him,  §  267. 
wages,  amount  of,  how  determined,  §§  258,  259. 
"        forfeiture  of  by  servant,  §§  254-7,  and  notes. 
"        loss  of  by  accepting  new  emi^loyment,  §  258. 
"        when  they  depend  on  full  term  of  service,  §  254. 
term  of  service,  §  254. 
Married  women— agents  for  their  husbands,  §  105. 
incomiDctent  to  make  contracts,  §§  103-5. 
right  of  to  hold  property,  §  105,  note  1. 
statutory  j^rovisions  removing  disabilities  of,  §  105,  note  1. 
Measure  of  damages— caused  by  animals  when\'icious,  §  182. 

caused  by  contagion,  spread  of  from  diseased  animals,  §§  155,  156. 
"        "  pollution  of  water  in  stream,  §  390,  and  notes. 
"        "  sheep-killing  dogs,  §§152,  154. 
"        "  trespass  of  animals  on  crops,  §  167. 
on  breach  of  warranty,  §  12*9. 
Mechanic  arts — college  of  agriculture  and  mechanic  arts,  §  3. 
Memorandum — of  sale,  when  a  warranty,  §  127. 
Michigan — agricultural  societies  in,  §  10. 

estates  for  years  in  real  property,  §  360. 
duty  of  railroad  companies  to  fence,  §  240. 
fences  and  "  lawfiil  fences,"  §  222. 
fencing  against  live-stock,  §  214. 
fire,  protection  against  destruction  of  crops  by,  §  58. 
malicious  injury  to  domestic  animals,  §  202. 
sheep,  protection  of  from  dogs,  §  151,  and  note. 
Middlemen— history  of,  §§  287,  288. 
Minnesota — agricultural  societies  in,  §  10. 
board  of  agriculture,  §  10. 
cattle,  fencing  them  in  by  owner,  §  88,  note  2. 
estate  for  years  in  real  property,  §  360. 
contagion,  protection  of  animals  from  disease  by,  §  144. 
growing  crops,  statutes  as  to,  §  24,  note  4. 
fencing,  and  "  lawful  fences,"  §  88,  and  notes;  §§  214,  222. 


508 


INDEX. 


Minnesota— Continued. 

fencing  by  railroad  companies,  §  240. 
malicious  injury  to  domestic  animals,  §  202. 
marks  and  brands,  §  148,  and  note, 
sheep,  protection  of  from  dogs,  §  151,  and  note. 
Mill  privilege— acquired  by  prescription,  §  394. 
acquisition  by  grant,  §  394. 
of,  §  394. 
See  Easement,  RrpARiAN  PROrRiETOES,  Water 
Mines— in  land  over  wbicli  public  road  runs,  §  397. 
Minors — contracts  of,  earnings  of.     See  Apprentice. 
Misrepresentation— in  procuring  lease,  §  304. 
of  fact,  when  a  fraud,  §  111. 
of  material  fact,  when  it  vitiates  contract,  §  111. 
See  Contracts. 
Mistake— as  to  character  of  property  bought,  §  114. 

"     material  facts,  §  114. 
Mississippi— fences  in,  §  222. 

fencing  by  railroad  companies,  §  238. 
malicious  injury  to  domestic  animals,  §  202. 
Missouri— agricultural  societies  in,  §  10. 
State  Board  of  Agriculture.  §  10. 
fencing  by  railroad  companies,  §  238. 
Monomaniacs— contracts  by,  §  lOG. 

presumption  of  incompetency  of,  §  106. 
See  Contracts. 
Montana— marks  and  brands,  §  148,  note. 
Mortgage— chattel  mortgage,  §§  29-31. 

"  "  on  anticipated  dairy  products,  §  31. 

"  "  "  anticipated  crops,  §  29,  and  notes;  §  30,  and 

note  1 ;  §  31. 
"  "  "  anticipated  wool  product,  §  31. 

"  "  "  growing  crops,  §  29,  and  notes  ;§  30,  and  note ; 

§31. 
on  real  and  personal  property,  §  29. 
Mortgagee — estoppel  of  as  to  crop  sown  by  tenant  of  mortgagor,  §  23. 
his  title  to  growing  croi^s,  §§  22,  23,  and  notes, 
may  maintain  action  for  conversion  of  crop,  §  23. 
Mortgagor — his  power  over  crop,  §§  21-3. 
when  he  cannot  protect  crops,  §§  21-3. 


isr. 

Nasal  gleet — "unsoundness"  in  animal,  §  133. 
Navicular  joint  disease— "unsoundness"  in  a  horse,  §  1.33. 
Nebraska — lawful  fences  in,  §  222. 
Negligence— burden  of  proof  of  in,  §§  55-7,  70,  85. 

"  "  "    damage  by  fire,  §§  55,  56,  70. 

"  "  "  "        to  live-stock,  §  85. 

by  agistor,  §§  184,  185,  187. 
"  bailee,  responsibility  of  bailor  for,  §  188. 
"  borrower  of  animals,  §  101. 
"   drovers  of  animals,  149. 


INDEX.  509 

Negligence— Continued. 

by  factors,  §  286. 

hunters  or  travelers  setting  fire,  §  60. 

hirer  of  animals,  §  97. 

owner  of  animals  affected  with  contagions  disease,  §  146. 

servant,  §  249. 

servant,  responsibility  of  employer,  §§  265,  266. 

servants  of  railroad  companies,  fires  from  locomotives,  §§  57,  58. 

"  "  "  injury  to  live-stock,  §§  78, 79. 

trespassers  allowing  fire  to  escape,  §  59. 
contributory  in  case  of  artifice  or  fraud,  §  111. 

"  by  owner  of  animals  injured  by  contagion,  §  156. 

"  "  "  "        run  into  by  locomotives,  §§  237, 241. 

definition  of,  §  62. 

in  guarding  against  contagion  to  animals  of  infectious  diseases,  §§  144-6. 
"  "        injury  by  dangerous  animals,  §  177. 

"       spread  of  fire,  §§  50, 52^,  57-60.    See  Fire. 
in  sale  of  animals  affected  by  contagious  diseases,  §  146. 
Nerving — a  cause  of  "unsoundness"  in  a  horse,  §  133. 
Nebraska — lawful  fences  in,  §  222. 
Nevada — agricultural  college  act,  §  5. 

marks  and  brands,  §  148,  and  note. 
NeTV  Jersey — estates  for  years  in  real  property,  §  360. 
fencing  against  live-stock,  §  214. 
fencing  by  railroad  companies,  §  238. 
lawful  fences,  §  222. 

malicious  injury  to  domestic  animals,  §  203. 
sheep,  protection  of  from  dogs,  §  151,  and  note. 
New  Hampshire— estates  for  years  in  real  property,  §  360. 
exception  to  rule  of  boundary  by  high-water  mark,  §  49. 
fencing  by  railroad  companies,  §  238. 
fertilizers,  statutes  concerning,  §  39. 
fires,  protection  of  crops  from,  §  68. 
fires  by  sparks  from  locomotives,  §  68. 

infectious  disease,  protection  of  domestic  animals  from,  §  144. 
lawful  fences,  §  222. 
marks  and  brands,  §  148,  and  note, 
sheep,  protection  of  from  dogs,  §  151,  and  note ;  §  152. 
New  York — agricultural  societies  in,  §  11. 

apprentices,  statutory  provisions  as  to,  §  327,  note  1. 
estates  for  years  in  real  property,  §  360. 
fencing  by  railroad  companies,  §§  234,  238. 
lawful  fences,  §  223. 

malicious  injury  of  domestic  animals,  §  203. 
North  Carolina— fencing  against  domestic  animals,  §  215. 
fencing  by  railroad  companies,  §  238. 
fire,  protection  of  crops  from,  §  57. 
lawful  fences,  §  223. 

malicious  injury  of  domestic  animals,  §  203. 
manure,  ownership  of,  §  48. 
Notice— of  character  of  dangerous  animal,  §  180. 

to  owner  of  animals  impovxnded,  §  247,  and  notes. 
Nuisance— pollution  of  water  of  stream,  §  390,  and  notes.  "^ 


510  INDEX. 


o. 

Offer— acceptance  of,  requisite  to  make  binding,  §  108. 

wlien  to  be  deemed  continuing,  §  109. 

wlien  not  to  be  deemed  continuing,  §  109. 
Ohio — agricultural  colleges  in,  §  11. 

estates  for  years  in  real  property,  §  360. 

fencing  by  railroad  companies,  §  239. 

fire,  protection  against,  §  58. 

malicious  injury  of  domestic  animals,  §  203. 

slieep,  protection  of  from  dogs,  §  151,  and  note. 
Olives — inducements  to  colonists  skilled  in  culture  of,  §  2. 
Opinion — of  vendor  of  property,  expression  of,  when  a  warranty,  §§  123,  124. 
Orchard — burning  of,  by  fires  from  locomotives,  §  G7. 

preservation  of  by  tenant,  §  306. 
Ordinary  care— deiinitions  of,  §§  176,  177, 181,  185. 

what  is  by  agistor,  §§  184,  185. 

"      "  in  guarding  dangerous  animals,  §§  176, 177. 
Oregon— agricultural  college  act  of  Congress  as  to  Oregon,  §  5. 
Ossification— on  "side  bone,"  "unsoundness"  in  a  horse,  §  133. 
Outlaws — sales  by,  §  103. 
O^wner — of  vicious  animals,  liabilities  of,  §§  175,  176. 

of  vicious  animals  an  insurer,  §  176,  and  note  1. 

or  bailee  may  bring  action  for  injviry  of  property,  §  159. 
Over-reaching — clicking,  or  striking,  when  ' '  unsoundness  "  in  a  horse,  §  133. 


Paralysis — "unsoundness  "  in  a  horse,  §  133. 

Parent  and  child— apprenticeship  of  child  by  parent,  §  326. 

contracts  of  child,  when  binding  on  parent,  §  312. 

duties  of  child  to  parent,  §  317. 

duty  of  child  to  support  parent,  §  317. 

education  of  child  by  parent,  §  311. 

emancipation  of  minor  by  parent,  §§  313,  314. 

parent's  duty  to  support  child,  §  310. 
"       liability  for  torts  of  cliild,  §  315. 
"       right  to  earnings  of  cliild,  §  315. 
"  "of  recovery  for  injuries  to  child,  §  316. 

Parties— all  tenants  in  common  to  be  made  parties  to  partition  suits,  §  363. 

to  sales  of  property,  §  103. 

who  commit  fraud,  held  to  contract,  §  110. 
Partnership — in  cropping  on  shares,  §  340. 
Parol — agreement  for  sale  of  trees,  §  25,  note  4. 

reservation  of  growing  crops,  on  sale  of  land,  §§  18,  19,  and  notes. 

sale  of  growing  crops,  §  20,  and  note  1. 

license,  confers  privilege,  but  does  not  pass  estate,  §  366,  note. 
Parotid  gland— ulcerated,  "  unsoundness  "  in  a  horse,  §  133. 
Partition — action  for,  brought  by  any  tenant  in  common,  §  363. 

all  tenants  in  common  must  be  made  parties  to  in  action  of,  §  363. 
Partition  fences— §§  216,  217,  218. 


INDEX.  611 

Partition  fences— Continued. 

covenants  to  repair,  §  216. 
local  statutes,  control  of,  §  218. 
See  Fences,  Division  Fences. 
Pasturage— of  animals,  §§  184,  192. 
in  dairy  contracts,  §  342. 

in  road  over  wliich  right  of  way  is  granted,  §  82. 
See  Agistor,  Anijials. 
Pawn— of  consigned  goods  by  factor,  §§  278,  279. 
Pennsylvania— fence  laws,  §  214. 

fencing  against  live-stock,  §  214. 

"       by  railroad  companies,  §  2.39. 
lawful  fences,  §  223. 

malicious  injury  to  domestic  animals,  §  203. 
sheep,  protection  of  from  dogs,  §  151,  and  note, 
estates  for  years,  §  .300. 
Personal  property— disposal  of,  §§  19,  20,  24,  25,  29. 

growing  crops,  §§  19,  20,  and  note  1;  §  24,  and  note  3. 
mortgage  of,  §  29. 
nursery  trees,  §  25. 
Personal  right — exemption  of  property  from  seizure,  §  28. 
Plants— distribution  of  by  Department  of  Agriculture,  §  2. 
Pledge— by  factor  of  consigned  goods,  §§  278-80,  281,  283. 
Pleuro-pneumonia— protection  against  spread  of  among  cattle,  §  144. 
Plo'wing— around  fields  to  prevent  spread  of  fires,  §  76,  note  1. 
Poles — used  in  gardening,  when  deemed  "  fixtures,"  §  44,  note  2. 
Poll-evil — "  unsoundness  "  in  a  horse,  §  13.3. 
Ponds— when  lawful  fences,  §  224. 

when  boundary,  j)artition  fence  on  either  side  of,  §  228. 
Pork-packer — his  covenants  as  to  skill  and  cajiacity,  §  166. 
Possession — requisite  for  iirotection  of  lien  on  personal  property,  §§  137, 143. 
under  cropping  contract,  shows  intention  of  parties,  §  339. 
"     dairy  contract,  shows  intention  of  parties,  §§  347,  352. 
Pound— covert,  §  243. 
laws,  §§  242,  248. 
"      constitutionality  of,  §§  244,  245. 

"     strictly  construed,  §  247  and  notes,  and  248  and  notes, 
sales,  buyer  assumes  risk  of  regularity  of  proceedings,  §§  247,  248,  and  notes. 
"      no  presumption  of  regularity  of  proceedings,  §  248. 
Praise — of  property  not  a  warranty,  §  123. 
Pre-emption — entries  on  agricultural  college  lands,  §  5. 
Prescription— as  to  public  road,  §  402. 
mill  privilege  acquired  by,  §  394. 
right  to  taint  water  in  stream,  acquired  by,  §  390. 
to  fence,  §§  210,  210. 
to  maintain  fences,  §  216. 
Presumption— against  negligence  by  agistor,  §  187. 
as  to  usages  of  trade,  §  277. 
of  dedication  of  property  to  public  use,  §  404. 

of  grant  by  lapse  of  time  of  user,  §§  210,  377,  and  note  :  §  402,  and  notes. 
"      of  way  for  private  road,  §  .377,  and  note. 
"  "    for  public  road,  §  402,  and  notes. 

"  "    how  rebutted,  §  378,  and  notes. 

"  "    on  sale  of  land,  §§  370,  374,  and  notes. 


512  INDEX. 

Presumption — Continued. 

of  malice  against  owner  of  animals  wantonly  injured,  §  195. 

of  ownership  of  land  to  middle  of  road,  §§  395,  396,  and  notes. 
"  "      under  water-course,  §  380. 

of  purchase  of  animal  taken  on  trial,  §  109. 

of  wife's  agency  for  husband,  §  105. 
Profits — considered  on  breach  of  warranty,  §  129. 
Property — definition  of,  real  and  personal,  §  353. 

iieculiar  in  dogs,  §§  170,  174. 
Proposal — to  be  binding  must  be  accepted,  §  108. 

when  to  be  deemed  continuing,  §  108. 
Public  lauds — donation  of,  for  agricultural  colleges,  §  3. 

fences  and  buildings  on,  §  308,  note  1. 
Public  road— See  Highways,  §  396. 
Punitive  damages — for  wanton  injuries  to  animals,  §  168. 


Quarries — ownership  of,  under  public  road,  §  397. 
Quittor — "unsoundness  "  in  a  horse,  §  133. 


Railroad  companies — care  by,  in  running  locomotives,  §  72. 
cattle-gvTards  to  be  put  at  road-crossings,  §  233. 
contracts  by  as  to  fencing,  §  83. 
diamage  to  live-stock,  §§  78,  79,  82,  86,  87,  233-6. 

"        "  "  burden  of  proof  of  negligence,  §  79. 

"        "  "  stopping  train  when  cattle  on  the  track,  §§  86,  87. 

"        "  "  where  right  of  way  was  granted,  §  82. 

fences  to  be  kept  in  repair,  §§  78,  90,  note  1 ;  §§  233,  235. 
fencing  by,  §§  78,  79,  89,  90,  233-5. 
fencing  by,  statutes  providing  for.    See  Fences. 
gates  at  road-crossings  to  be  closed,  §§  89,  90. 
fires  from  locomotives,  §  57,  note  3;  §§  65,  75,  76,  note  1. 
"        "  "  burden  of  proof  of  negligence,  §  70. 

"        "  "  damage  by,  distinguished  from  injury  to  animals, 

§  85,  note  1. 
"        "  "  duty  of  company  to  guard  against,  §  71. 

"        "  "  liability  for  damage  by,  §§  71,  76. 

"        "  "  proximate  and  remote  consequences,  §  75. 

"        "  "  precautions  against  by  land-owners,  §  76,  note  1. 

See  Fires. 
liability  of  for  damages,  §§  79,  80. 

"        "    "    negligence  of  employee,  §  265,  note  2. 
right  of  way  over  pastures,  §  81. 
speed  of  trains,  how  regulated,  §  87. 
Range— injury  to  cattle  upon,  by  railroads,  §  81. 
Rat-taU— not  unsoundness  in  horses,  §  133. 
Real  estate -§§  :553,  363. 
fee-sin  pie,  §  355. 
estates  for Jife,  §  .357. 


INDEX.  513 


Real  estate— Continued. 

estates  for  years,  §  359.    . 

"      at  will  and  by  sufferabce,  §  361. 
"       tail,  §  356. 
"      by  curtesy,  §  358. 
"       by  dower,  §  359. 
tenancy  in  common,  §  363. 
joint  tenancy,  §  362. 
corporeal  and  incorporeal,  §  354. 
products  from' trees,  §  25. 
growing  crops,  §  19,  note;  §§  21,  29. 
grass,  §  25. 

fences,  when  a  part  of,  §  45. 
manure,  follows  ownershiij  of  land,  §  41. 
leases  of.    See  Landlord  and  Tenant. 
rent,  "  "  "  " 

fertilizers.     See  Pertilizeks,  Manure. 
Rearing— when  a  vice  in  a  horse,  §  133. 
Reasonable  time— construction  of  what  is,  §  109. 
Record— of  chattel  mortgages,  §  29. 

of  marks  and  brands,  §  148. 
Relationship— when  a  badge  of  fraud,  §  318. 
Reliction— definition  of,  §  391. 

distinction  from  alluvium  and  avulsion,  §  .391. 
Rent — action  for  on  dairy  leases,  §  346. 

See  Landlord  and  Tenant. 
Replevin — for  animals  imjaounded,  §§  244,  246. 
Repairs — See  Landlord  and  Tenant. 
Reservation — of  right  of  way,  §  402. 

of  growing  crops,  §§  17,  26. 
Rheumatism — when  unsoundness  in  a  horse,  §  133. 
Rhode  Island — laws  relating  to  fences,  §  222. 

laws  for  protection  of  sheep,  §  151,  note. 
Right  of  way— §§  364,  378. 
definition,  §  369. 
by  prescription,  §  366,  note. 
when  special  or  restricted,  §  .368. 

"      general  or  for  all  purposes,  §  368. 
"      covenant  running  with  land,  §  368. 
"      appurtenant  to  land,  §  309. 
over  private  road,  §  406. 
what  passes  by  grant,  §  375,  note, 
grantee  bound  by  terms  of  grant,  §  368,  note, 
how  obtained  by  the  public,  §  402. 
Sec  E.'Vsement,  Way. 
Ringbone — unsoundness  in  a  horse,  §  133. 
Riparian  proprietors— rigJits  of,  §§  .379,  .394. 
right  to  sea- weed,  §  49. 
mill  privilege,  §  394. 

"  "        ownership  of  water-power,  §  393. 

"  "        not  to  injure  otliers,  §  394. 

"  "        may  be  granted,  §  394. 

use  of  water,  §§  .381,  386,  and  notes. 
"     "      "        not  an  easement,  §  384. 

Farms — 33. 


514  INDEX. 

Riparian  proprietors— Continued. 

use  of  water  for  animals,  §  387,  388. 
"    "      "         "  domestic  purposes,  §§  387,  388. 
"    '•      '■         "  natural  purposes,  §§  387,  388. 
'■     '■      "         "  artificial  purposes,  §§  387,  388. 
■'     '•      "  "  for  irrigation,  §  388. 

"     "      "        not  to  detain,  §§  385,  386. 
"    "      "       regard  to  rights  of  others,  §  38G. 
"     "      '■        j)ollution  of  stream,  §  390. 
"     "      "        confined  to  reasonable  use,  §§  387, 389. 
River — when  regarded  as  lawful  fence,  §  224. 
Roads— §§  395, 406. 

when  not  part  of  adjoining  land,  §  266,  note  1. 
right  of  land-owner  in  soil  of,  §  367,  and  note  2. 
right  of  landlord  in  soil  of,  §  367,  and  note  2. 
repairs  of,  §  376,  and  note. 
See  Highway,  Easemekt. 
Roaring — when  unsoundness  in  a  horse,  §  133. 
Robbery — regarded  as  accident  by  superior  force,  §  .351. 

theft,  of  animals  held  under  lease,  §  351. 
Rubbish— right  to  burn,  §§  53,  54. 
Rumbling — not  unsoundness  in  a  horse,  §  133. 
Running  away — a  vice  in  a  horse,  §  133. 


s. 

Saddle-galls — when  unsoundness  in  a  horse,  §  133. 
Sale — of  college  land  scrij),  §  4. 

what  persons  competent  to  make,  §  103. 

of  personal  ijroperty,  when  to  be  in  writing,  §  113. 

"  growing  crop,  §  24,  note  1;  note  4. 

"         "  "      when  to  be  in  writing,  §§  34,  35. 

"  land,  when  carries  detached  fences,  §  45. 

"       "  "  "       growing  crop,  §  Hi. 

"       "         "  "       manure,  §§  43,  45. 

"      ''     reservation  of  crops,  etc.,  §  17. 

"      "     upon  execution,  §  24,  note  1. 

how  affected  by  fraud,  §  112. 

of  wool,  dairy  jsroducts,  etc,  §  31. 

"  animals,  §  103. 

"  dangerous  animals,  §  180. 
"   diseased  cattle,  §  146. 

"   crop,  §  31. 

"   crop  not  sown,  §  30. 
by  slaves,  §  103. 

"  married  women,  §  103. 

"  infants,  drunkards,  idiots,  lunatics,  and  outlaws,  §  103. 

"  aliens  and  seamen,  §  103. 
upon  credit  by  factor,  §  277.    See  Factor. 
by  common  carrier  for  charges,  §  294.    See  Common  Cakrier. 
by  samples,  §  127. 

See  Contracts,  Grant,  Vendor. 
Sallenders — unsoiuidness  in  a  horse,  §  133. 


INDEX.  515 


Sample— sales  by,  §  127. 

Sand-crack — -when  unsoundness  in  a,  horse,  §  133. 
Schools — duty  of  parent  as  to,  §  311. 
Scienter — conamon-law  rule  of,  §  175. 

when  need  not  be  proved,  §  172. 

need  not  be  shown  as  to  sheep-killing  dog,  §  153. 
Scrip — agricultural  college  land,  §  3. 
Seamen— contracts  by,  §  103. 
Sea-vreed — as  manure,  §  40. 

title  to,  §  49. 
Secretary — of  Interior  to  issue  college  land  scrip,  §  3. 

of  State  of  Arkansas  to  receive  college  scrip,  §  5. 
Seeds— distribution  of  by  Department  of  Agriculture,  §  2. 

warranty  of,  §  129. 
Servant— negligence  of,  §  50. 

liability  of  master  for  acts  of,  §  142. 

See  Master  and  Servant. 

Servitudes — when  positive  or  negative,  §  367. 

See  Easements. 
Shares — raising  crops  on,  §  331. 

herding  sheep  on,  §  159. 
Sheep — duty  of  shepherd,  §  157. 

guarding  against  infectious  diseases,  §§  156,  157. 

warranty  of  soundness,  §  154. 

sheep-killing  dogs,  statutes  relating  to,  §  151. 
"         "      may  be  killed,  §§  151,  171. 
"  "         '•      owner  responsible  for,  §  172. 

taken  on  shares,  §§  158,  159. 

"  "       duty  of  bailee,  §169. 

"  "       increase  of,  §  158. 

"  "       rights  of  third  jjersons,  §  159. 

Sheriff— levying  on  growing  crops,  §§  16,  note  3  ;  §  24. 

must  levy  on  articles  not  exempt,  §  28. 
Ships— as  carriers  of  freight.    See  Common  Carriers. 
Shying — when  a  vice  in  a  horse,  §  133. 
Sickness— terminates  contract  of  service,  §  255. 
Side-bones— or  ossification,  unsoundness  in  a  horse,  §  1-33. 
Silence — when  amounts  to  fraud,  §  126. 
Skill— required  of  liorse-breaker,  §  136. 

in  treatment  of  diseased  sheep,  §  156. 
Slaves — contracts  of,  void,  §  103. 
Soil— title  to,  in  public  road,  §§  396,  397. 

See  Real  Estate. 
Soundness— definition,  §§  130,  1.31. 

most  often  applied  to  horses,  §  130. 

what  is  unsoundness  in  animals,  §§  130,  133. 

of  sheep,  §  154. 
South  Carolina— lawful  fences  in,  §  222. 

duty  of  railroad  company  to  fence,  §§  234,  239. 

damage  to  live-stock  by  railroads,  §  85,  note  2. 

estate  for  years  in  real  property,  §  360. 
Spavin— unsoundness  in  a  horse,  §  133. 
Speedy-cut— not  unsoundness  in  a  horse,  §  133. 
Splint— when  unsoundness  in  in  a  horse,  §  133. 


516  INDEX. 

Sportsmen— fire  caused  by,  §  60. 
Sprain — when  unsoundness  in  a  horse,  §  133. 
Stallion — rights  and  liabilities  of  owner,  §  138. 
Star-gazing — not  unsoundness  in  a  horse,  §  133. 
Statutes— when  declaratory  of  common  law,  §  212. 

of  exemiDtion,  §  27. 

against  importation  of  infectious  diseases,  §§  145,  147. 

as  to  fences,  §§  214,  215,  217. 

"  "        "        by  railroad  companies,  §§  233,  240. 
Statute  of  Frauds— §  113. 

as  to  sale  of  growing  crop,  §  34. 

in  sales  of  animals,  §  113. 

as  to  estates  for  years,  §  3G0. 

"   "  sales  by  brokers  and  factors,  §  269. 
Statutes  of  Limitation — presumption  of  grant,  §  216. 

as  to  fencing,  §  21G. 

"   "  right  of  way,  §  377. 

"   "  highway,  §  402,  and  note. 

"   "  mill  ijrivilege,  §  394. 

"   "  use  of  water,  §  390. 
Steam — use  of  in  farming,  §  61. 
Stock — See  Animals,  Live-Stock. 
Stone — right  to  quarry  for,  §  400,  and  note  1. 
Storage — lien  for,  §  294. 

Strangles — when  unsoundness  in  a  horse,  §  133. 
Straws — See  Fertilizers,  Manure. 
Stubble— right  to  burn,  §  53. 
Sufferance — estates  by,  §  361. 

Support  and  maintenance— of  children.     See  Parent  and  Child. 
Surgeon — veterinary,  lien  of,  §  138. 

Surveyor-General — survey  of  agricultural  college  land,  §  5. 
Survivorship— in  real  property,  §  362. 


T. 

Taxes — as  affecting  leases,  §  298. 

See  Landlord  and  Tenant. 
Temper — in  animals,  §  195. 
Tenants— of  mortgaged  land,  §§  22,  23. 

right  of  possession  under  dairy  lease,  §  348. 

right  to  enter,  harvest,  and  remove  crop,  §  15. 
See  Landlord  and  Tenant. 
Tenants  in  common — rights  and  duties  of,  §  363. 

in  real  property,  §  363. 

cropjiing  on  shares,  §  332. 
Tennessee — agricultural  bureau  of,  §  11. 

agricultural  societies  in,  §  11. 

laws  as  to  marks  and  brands,  §  148,  note. 

fence-laws  of,  §§  214,  222. 

malicious  injury  to  animals,  §  203. 

protectiou  of  slieep  from  dogs,  §  151,  note. 
Texas— fencing  against  live-stock,  §  214. 

lawful  fences,  §  222. 


INDEX.  517 

Texas— Continued . 

malicious  injury  to  animals,  §  204. 

laws  of,  as  to  marks  and  brands,  §  148,  note. 

protection  of  cattle  against  fever,  §  144. 
Theft — of  animals  held  under  lease,  §  351. 

regarded  as  accident  by  superior  force,  §  351. 
Thick-wind— when  unsoundness  in  a  horse,  §  133. 
Third  persons— protected  against  fraud,  §  111. 
Threshers,  steam— diligence  required  of  owner,  §§  C3,  64 

how  to  be  used,  §  63. 

damages  caused  by,  §§  61,  63. 

are  "  agricultural  implements,"  §  Gl,  note  1. 
Thrush — unaoundnes.s  in  a  horse,  §  133. 
Tide-'water — rights  of  rij^arian  owners,  §  49. 
Timber— right  of  the  public  to,  in  highway,  §§  397,  398. 

right  of  tenant  to,  §  30S. 

burning  of,  by  locomotives,  §§  07,  G8,  note  1. 
See  Tkees. 
Time — hours  for  work  to  be  fixed  by  employer,  §  252. 

when  warranty  of  animals  may  be  made,  §  118. 

of  keejiing  animals  held  on  trial,  §  109. 
Title — warranted  by  sale  of  personal  property,  §  124. 

See  Waeranty,  Estates,  etc. 
Torts — committed  by  children,  when  i)arent  liable,  §  315. 

injuries  to  animals.     See  Anemals. 

"        by  railroad  companies.    See  Eailkoad  Companies. 
Tovirns — jurisdiction  of  over  highways,  §  244. 
Trade — usages  of,  presumption  as  to,  §  277. 
Trainer — of  horses,  rights  and  duties  of,  §§  136,  137. 

lien  of,  §  137. 
Tramps — fires  caused  by,  §  59. 
Transfer — wlien  amounts  to  a  sale,  §  103. 
Transportation — of  goods.    See  Common  CARKtERS. 
Trapping — of  dogs  unlaw^il,  §  170. 
Travelers — fires  caused  by,  §  60. 
Trees— distribution  of  by  Department  of  Agricultiu-e,  §  2. 

property  in,  §  37. 

when  a  part  of  realty,  §  25. 

when  deemed  "an  interest  in  land,"  §  37. 

distinguished  from  crops,  §§  25,  37. 

growing,  not  deemed  chattels,  §  25. 

nursery,  personal  property  by  law  of  the  State,  §  25. 

parol  agreement  for  sale  of,  §  25,  note  4. 

when  contract  for  to  be  in  writing,  §  37. 

when  not  liable  to  execution,  §  25. 

laws  as  to,  in  Vermont,  §  37. 
See  Timber. 
Trespass— by  animals  upon  inclosed  land,  §  225. 

action  by  owner  along  highway,  §  397. 

by  animals,  when  agistor  liable,  §  188. 

upon  railroad  track,  §  81,  note  2. 

fires  caused  by  trespassers,  §  59. 

by  hogs,  action  for,  §  167. 
Trial— of  animals  before  purchase,  §  109. 

time  for  which  they  may  be  kept,  §  109. 


518  INDEX. 

Tripping— when  a  vice  in  a  horse,  §  133. 
Trust— how  far  factors  are  trustees,  §  285. 

identity  of  consignment  establishes,  §  283,  note  1. 

when  agents  become  trustees,  §  318. 


IT. 

United  States— Agricultural  Society  of,  §  6. 

laws  of,  for  protection  of  cattle  from  disease,  §  14-1. 
Unsoundness— general  definition  of,  §  131. 

various  kinds  of,  among  horses,  §  133. 
Usage— of  trade,  presumption  of  knowledge  of,  §  277. 

as  affecting  ownership  of  manure,  §  47. 
User— must  be  adverse  to  create  presimiption  of  a  grant,  §  378,  note. 

of  highway,  by  the  public,  §  399. 

See  Prescription,  Statute  of  Leviitatioxs,  etc. 


V. 

Vendor  and  vendee— warranty  of  title  to  personal  property,  §§  93,  124. 

implied  warranty  as  to  land  to  real  estate  broker,  §  272. 

fraud  by  vendor,  §§  110,  112. 

concealment  of  facts  from  vendee,  §  112. 

sale  of  crop  not  sown,  §  30. 

sale  of  wool,  §  160. 
"  of  dangerous  animal,  §  180. 
"  of  trees,  §  25,  note  4. 

manure  passes  with  land,  §§  43,  45. 

detached  fences  pass  with  land,  §  45. 
See  Sale,  Contract. 
Vermont— lawful  fences  in,  §  222. 

fencing  against  live-stock,  §  214. 

duty  of  railroad  companies  to  fence,  §  240. 

laws  of,  as  to  trees,  §  37. 

malicious  injury  to  animals,  §  204. 
Veterinary  surgeons— royal  college  of,  §  139. 

rights  and  duties  of,  §  139. 

professional  standing  of,  §  139. 

responsibilities  of,  §  140. 

malpractice  by,  §  140. 

degree  of  skill  required,  §  140. 

not  to  transfer  care  of  horse  to  anotlier  person,  §  140. 

lien  of,  §  141. 
"    dei^endent  on  possession,  §  141. 
Vices  in  animals— wan-anty  against  vice,  §  133. 

owTier  of,  an  insurer,  §  176,  and  note  1. 

hirer  of,  resiionsible  for  damages,  §  179. 

borrower  responsible  for  damages,  §  179. 

if  stolen,  responsibility  ceases,  §  179. 
See  Animals. 
Vines — inducements  to  colonists  skilled  in  culture  of,  §  2. 
Virginia— lawful  fences  in,  §  222. 
Vivas— utisoundness  in  a  horse,  §  133. 


INDEX.  619 


W^. 


Wages— of  servants,  §§  254,  255. 

See  ]VL\STER  and  Servant. 
Ward — See  Guardian  and  Ward, 
Warranty— of  title,  to  brokers  of  real  estate,  §  272. 

of  title,  extends  only  to  lawful  claimants,  §  93. 
"      by  sale  of  property,  §  117. 
"      when  vendor  has  not  possession,  §  124. 

when  it  may  be  made,  §  118. 

mangier  of  making,  §§  119,  120. 

consideration  to  support  contract  of,  §  118. 

spirit  and  letter  of,  §  120. 

what  is  an  exjiress  warranty,  §  119. 

may  be  entire  or  limited,  §  119. 

limit  of,  as  to  time  it  continues,  §  120. 

what  it  covers,  §  121. 

caveat  emj)tor  does  not  apply,  when,  §  115. 

that  property  is  merchantable,  §  125. 

that  property  is  tit  for  s^Decial  use,  §  125. 

that  animals  are  of  special  breed,  §  125. 

that  the  lot  corresponds  with  the  sample,  §  127. 

where  buyer  cannot  inspect,  §  125. 

by  words  of  commendation,  §  164. 

by  false  statement  of  opinion,  §  123. 

by  boastful  praise,  not  imijlied,  §  123. 

by  exhibiting  sample  or  specimen,  §  127. 

by  fraud,  §§  128,  165. 

by  imi)lication,  §  124. 

by  description  of  property,  §  122. 

against  patent  defects,  §  121. 

latent  defects,  §§  125,  120. 

of  soundness  of  animals,  §§  130,  133. 

in  hiring  of  animals,  §§  91,  93. 

on  sale  of  animals,  §§  116,  129. 
"     "      "  hogs,  §§  161,  165. 

"     "     "  seeds,  §  129. 
"     "     "  wool,  §  100. 

damages  for  breach  of,  §  129. 
Washy — unsoundness  in  a  horse,  §  133. 
Waste — by  tenant  under  farm  lease,  §  305. 
"Water — general  rules  as  to  use  of,  §§  381,  380. 

ownership  of,  §§  381,  380. 

no  actual  property  in,  §§  381,  385. 

title  to  water-power  in  stream,  §  393. 

springs  in  public  road,  §  397. 

right  to  use  for  natural  purposes,  §§  387,  388. 
"      "     '•     "    artificial  purposes,  §§  387,  388. 

reasonable  consumirtion  by  riparian  owner,  §§  388,  389. 

tainting  and  pollution  of  stream,  §  390. 

right  to  use  for  irrigation,  §  .388. 

irrigation  an  artificial  use,  §  ;588. 

right  to  water  live-stock,  §§  387,  ;588. 


520  INDEX. 

Water— Continued . 

for  animals  provided  by  agistor,  §  18(5. 

right  to  mill-jirivilege,  §  3'J4. 
Water-course — ownership  of  land  under,  §  :')80. 

when  may  be  lawful  fence,  §  224. 

when  a  boundary  or  division  fence,  §  228. 

boundary  fence  may  be  on  either  side,  §  228. 

landlord's  interference  with,  §  347. 
Way — by  grant,  how  created,  §  373. 

by  prescription  or  user,  §  377. 

"  "  Statute  of  Limitations,  measure  of  time,  §  378,  and  note. 

of  necessity,  how  created,  §  372. 

definition  of,  §§  370,  372. 
on  sale  of  land,  §§  370,  374. 

"  "         presumption  of  grant,  §§  370,  372. 

for  agricultural  purposes,  §§  374,  375,  and  notes. 

Avhen  appendant  or  appurtenant,  §  368. 

when  passes  to  grantee,  §  373. 

repair  of,  over  jirivate  lands,  §  37G. 
See  Highway,  Roads,  Easement. 
Weak-foot — When  unsoundness  in  a  horse,  §  133. 
Weaving — when  unsoundness  in  a  horse,  §  133. 
West  Virginia — lawful  fences  in,  §  223. 

protection  of  sheep  from  dogs,  §  151,  note. 
Whistling — an  unsoundness  in  a  horse,  §  133. 
Wife — incompetency  of,  to  contract,  §  105. 

when  agent  for  her  liusband,  §  105. 
Wind-galls — when  unsoundness  in  a  horse,  §  133. 
■Wisconsin — State  Agricultural  Society,  §  11. 

agricultural  societies  in,  §  11. 

estate  for  years  in  real  property,  §  3G0. 

marks  and  brands,  §  148,  note. 

malicious  injury  to  animals,  §  204. 

lawful  fences,  §  223. 

duty  of  railroad  companies  to  fence,  §  239. 
Wolf's-teeth — when  unsoundness  in  a  horse,  §  133. 
Wood — right  to  clear  land  by  fire,  §  54. 

fuel  for  tenant,  right  to,  §  306. 
Wool — warranty  of,  §  160. 

fraud  in  i^acking,  §  160. 
"      "  sale  of,  §  160. 

when  packed,  rule  of  caveat  emptor,  §  160. 

representations  on  sale  of  when  packed,  §  160. 

growing  upon  the  flock,  mortgage  of,  §  31. 
"VToxAb — of  description,  how  far  a  warranty,  §  122. 

See  Warranty. 
Writing— when  contract  relating  to  growing  crop  to  be  in,  §§  34-,  35. 

reservation  of  growing  crop  to  be  in,  §  18. 

contract  of  apprentice  to  be  in,  §  329. 
Wyoming — laws  as  to  marks  and  brands,  §  148,  note. 


Y, 

YellOTWa,  or  Jaundice— when  unsoundness  in  a  horse,  §  133. 


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